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THE LIBRARY 

OF 

THE UNIVERSITY 

OF CALIFORNIA 

LOS ANGELES 



The Lawyer in History, Literature, 
and Humour. 

Edited by WILLIAM ANDREWS, f.r.h.s. 

'• A welcome addition to the lighter literature of the 
law." — The Tine*. 

"A considerable amount of historical and literary 
information." — Daily News. 

" An entertaining work. It is rich in the lore and the 
humour of the law, and ought to be as interesting to the 
layman as to the lawyer."— The Globe. 

"A handsome volume. . . . The work is printed 
and and got up in a style that does credit to the 
well-known firm of publishers." — Cheater Couraut. 




THIAL OP A PIG AT LAUSANNE IN IMF. FOURTEENTH CENTCKY. 




Begaf Eore : • ♦ 



Curioetftee , . . 



Sate anb Hampers* ♦ 



EDITKl) RV 



Wtfftam (ftttbretea. 



LONDON : 
WILLIAM ANDREWS & CO., 5, FARRINGDON AVENUE, E.C. 



1897. 



AlA 



0>rcfacc. 



^HE favourable reception given to my volume 
■*■ issued under the title of "The Lawyer 
in History, Literature, and Humour," has induced 
me to prepare, on similar lines, the present hook. 
dealing- with curiosities of the law. I hope 
those who are interested in the study of the 
byways of literature may find entertainment 
and instruction in its pages, and that it will 
win a welcome not only from the legal pro- 
fusion, but from the reading public. 

I am enabled by the courtesy of Messrs. 
Chatto & Windus, to reproduce for my frontis- 
piece, an illustration from a work published by 
them, under the title of "Credulities Past and 
Present." 



William Andrews. 



The Hull Press, 

10th December, 1896. 



8677 



Contents. 

Bible Lam By S Burgess, w. \. 1 

Sanctuaries. Bj William E A Axon, f.r.s.l. 13 

Trials in Superstitious Ages. By Ernest II Rann s; 

On Symbols. Bj George Neilson - 13 

Lw\ I'mh i; Tin Feudal System. By Cuming Walters • 58 

The Manor and Manor Law. By England Bowlett 83 

Ancient Ten ores. Bj England Howlett - - - 95 

Laws of the Forest. By Ed wan I Peacock, f.s. a. - l" ( .i 

TrialbyJuri in Old Times. By Thomas Frost - 122 

Barbarous Punishments. By Sidney W. Clarke - 132 

Trials of Animals. By Thomas Frost - 149 

Devices of the Sixteenth Centura Debtors. By James 

C. Macdonald, i.s.a., Scot. - 1(31 

Laws Relating to the Gipsies. By William E. A. Axon, 

F.R.S. I.. .... 165 

Commonwealth Law and Lawyers. By Edward Peacock 

I'.S.A. - - ITU 

i in k Fighting i.\ Scotland. - 197 

Cockieleerie Law. By Robert Bird - - - 200 

Fatal Links. By Ernest H. Kami 205 

Post-Mortem Trials. By George Neilson - 224 

Island Laws. By Cuming Walters - -.">7 

The Little Inns of Coort. - - 258 

Obiter. By George Neilson - -07 

Index - - - - 277 



LEGAL LORE. 



ffiible Xaw. 

By S. Burgess, m.a. 

AT the very outset of any treatment of so 
delicate a subject as that indicated by the 
title of this chapter, we are met by no small 
difficulty. This consists in the danger of com- 
mitting unintentional errors of irreverence, and 
thus offending the prejudices of those who are 
more or less pledged to their belief in the verbal 
inspiration of every Bible chapter and verse. 
With this risk before us, we can only trust to 
our own sense of a rational view of a subject so 
full of capabilities of misconstruction. Those of 
us who can remember the outburst of righteous 
indignation at the publication of the " Essays 
and Reviews " and of " Ecce Homo," feel surprise 
at the quiet indifference with which views ex- 
pressed in them are now received. This does doI 



2 LEGAL LORE. 

at all, or necessarily, mean that men's faith is 
colder, or that the spirit of reverent religious 
feelings has died away. The advance of accurate 
scientific investigation may have upset the faith 
of some, and given a subject for outbursts of 
intolerant pulpit denunciations, but we must 
think that there are signs plainly discernible of 
a quiet acceptation of modern discovery by the 
majority of thoughtful and devout believers in 
the inspiration of Holy Scripture. These re- 
marks will be found not unneedful as we pursue 
the examination of this particular branch of 
Biblical study, namely, the Law as it is found in 
the Bible, and this will be seen at once when it is 
laid down as an absolutely necessary condition of 
our investigation that this same Law can plainly 
be divided into two distinct portions — that which 
is of Divine, and that which is of human origin. 
The bare statement of this fact will offend 
certain prejudices. The Divine "Fiat" stamps 
with as marvellous and undoubted clearness, 
certain portions, as other parts are marked by 
the progress of human intelligence, the needs of 
human society, and the force of the human will. 

The very fact of the existence of Law entails 
the necessity of Penalty, and this may be 



BIBLE LAW. 3 

spiritual or corporal. Tin* former depends on 
the acknowledgment of the rule over as of a 
Superior Being. Tin- latter is a necessary 
accompaniment of all and every human life, 
believing or unbelieving. So in the Bible Law 
we can easily distinguish between the penalty 
affixed to the breaking of the first of the Ten 
CommandmentSj and that which followed on the 
breaking of the sixth. On the authority of 
Hebrew scholars, we are told that the use of the 
Hebrew Article shows that The Law refers to 
the expressed will of God. If this rule be 
invariable, it would be of great value, and 
especially so in the use of the Greek Article. 

The writers of the Psalms gave forth an 
intense reflection of the old Law ; always pre- 
suming, as they of course did, that it emanated 
from the Deity. 

Xow let us be allowed to start with the 
assumption that the Mosaic is the earliest form 
of tabulated Law. A most excellent book has 
just been published, "The History of Baby- 
lonia," by the Society for Promoting Christian 
Knowledge. It is a cheap little book, but full of 
information upon which one feels able to rely. 
We find there that the Moral Law of Babylonia 



4 LEGAL LORE. 

represents the spirit of Bible Law so accurately 
that it would be absurd to set up any theory of 
an independent basis. 

We must make a date somewhere, and there- 
fore we cannot do better than choose a date that 
can be fairly tested, and safely on this side of 
mythical eras, — and that is about 1500 B.C. This 
must appear a very safe and modest date to fall 
back upon. The Babylonians want us to go 
back 432,000 years, but to accept this assertion 
requires more faith than most of us possess. 

For our present purpose there is nothing 
gained by comparing the Mosaic Law with 
that discovered with such infinite care and 
learning in the Babylonian records. The 
utmost that can be said is that we have 
startling coincidences, and an intensely interest- 
ing subject opened out. But there is no single 
grain of information, and that is what we are 
just now in search of. We feel quite distrustful 
of documents, especially stone ones, which give 
the lifetime of Alorus as extending to 36,000 
years. That was before the Deluge. The 
Wandering Jew sinks into insignificance, and is 
a mere puling infant by the side of such figures 
as these, because the son of Alorus reigned for 



BIBLE I. AW. 

Hi, 800 years. However short the "year" was, 
the period of life was quite leDgthy. If a year 
was our week, the last named patriarch was 
about 1,000 years old. 

This is a departure somewhat from the Law as 
it is in our Bibles. But it will be an interesting 
study for sonic kind student to compare that 

Law with the echoes thereof found in Asiatic 
literature, even far away on the eastern shores of 
China. The mystery still unsolved is, " How did 

it get there f" 

With the greatest diffidence we make the 
statement that the first notion of Law was in 
connection with sacrifice. The time may come 
when this can be refuted. But at present, leav- 
ing out of the question natural and unwritten 
Law, we find no bond but this. Sacrifice comes 
to us as a Law from a Superior Being. Heathen 
nations have recognized the efficacy of sacrifice 
and offerings. 

Man without I jaw was an impossibility. No 
living tiling can exist without some Law. Thus 
we look back to the first records of created living 
things for some Law. Science sheds a great, 
broad, and even scaring, light on the Law prevail- 
ing over inanimate nature. The seas and the 



6 LEGAL LORE. 

Holds obey it. But for us to make a record of 
Law as it made its beginning, is a task too great, 
and it is indeed then we feel that "fools may 
rush in " where better souls have had to languish 
in doubt. 

Let us take the Law in the Bible as we can 
read it, and how few care to read it ! There was 
a man once who had read the whole of the first 
five books through twice. Thinking there might 
be something to gain from such abnormal study, 
we propounded a few questions on this very 
subject. The result was a senseless repetition of 
verses from Leviticus. And yet, to tell the 
honest truth, there is very little left us to do but 
to quote. There is a little assistance we can 
give, and most thankful we are to have it in our 
power to do so. Let us all the time remember 
that the Bible Law is the sole foundation of 
every Law, Human and Divine, as far as we can 
discover. If it can be proved that the Baby- 
lonian record with its 40,000 year old kings is to 
be relied on, then by all means let us accept it. 

We start with the sacrifice as the " compayiion " 
of the Law. No one can feel hurt by this. It 
is no good to any of us to ask whether Abel's 
sacrifice was according to revealed Law or 



BIBLE LAW. 7 

anterior to it. It is plain thai sacrifice came 
fco be the great medium of the Law between man 
and the great prevailing Law. With this 
allowed, all the rest is easier to grasp. The 
early Law among the first people seemed to have 
no force but in its connection with some limner 
Power. This Power has been now deputed to 
earthly sources. 

The writers of the Psalms represent to us a 
perfect intercourse with the Deity. The question 
then arises, " On what grounds was this inter- 
course conducted ?" The answer seems clearly to 
be on the conditions of the Laws of sacrifice. 
Now, by comparing the elaborate list of these 
contained in Smith's " Dictionary of the Bible" 
with a very careful one in " Notes on the 
Hebrew Psalms," by W. R. Burgess (1879), we 
can make out a clear and very useful resume. 
Leaving out the great sin offerings for the whole 
people and for the priests, we have the following 
sin offerings : — 

1. For any sin of ignorance. Lev. iv. A most 
elaborate ceremonial of sacrifice and blood sprink- 
ling. We should like to know when the "plea of 
ignorance" was done away with altogether, as we 
believe it has no force at all in modern Law. 



8 LEGAL LORE. 

2. For refusal to bear witness on oath. Lev. v. 
This is of very great interest in the light of 
recent legislation as to affirmation. We have 
come across many people, it is needless to add 
grossly ignorant, who have entirely lost sight of 
the obvious emphasis on the word "False" in 
the 9th Commandment, placing the whole force 
on the fact of " Witness." 

3. The Laws as to defilement. These, we 
presume, have left no trace on modern Law. 

4. The breach of a rash oath, the keeping of 
which would involve sin. Lev. v., 4. This 
opens a most interesting subject, but we have 
not space to enter upon it. From the days of 
Jephthah and his oath with regard to his 
daughter until this day, the question has been 
full of difficulties, and is divided amongst, 
perhaps, equal advocates for the two opposed 
views of it. 

5. Sacrilege in ignorance, fraud, swppressio 
veri, and perjury, were punished by enforced 
compensation, and the addition of a fifth part of 
the value concerned in the matter to the priest, 
or to the person wronged. 

6. Illtreatment of betrothed slaves. Lev. xix., 
20. This is only curious, but at the same time 



BIIJLK LAW. 9 

has a connection with late enactments in criminal 

I jaw. 

7. The Law as to the powers of a father is 
extraordinary. When one considers the relation 
now existing and defined by our Law, the revolu- 
tion is beyond all measure out of reasonable 
proportion. For a curse, a blow, or even wilful 
disobedience, the penalty was death '. 

8. The Law of usury is difficult, but the chief 
points are well known. The main principle of 
the Law prevails to this day. Let us only 
notice the striking fact that usury could not be 
exacted upon the Jews themselves. Does this 
not offer a fine comment on the grievous usury so 
cruelly enforced in after years by these people 
upon the (rentile races ? 

9. Debt. All debts were released at the 
seventh year. So there was a year of limitation. 

10. Tithe. This Law has been so frequently 
and ably set forth, that it is entirely one's own 
fault if it needs any comment. 

11. Poor Laws. These are conspicuous by 
their absence. There was a legal right of glean- 
ings, a second tithe to be given in charity, and 
wages were to be paid day by day. (Dent, wiv.) 

A few rather important forms of legislation 



10 LEGAL LORE. 

must be placed here as addenda. We notice the 
entirely despotic power of the husband over the 
wife, and all belonging to her. Compare our 
useful but very late enactment as to married 
women's property, apart from her almost com- 
plete irresponsibility. 

The slander against a wife's virginity is 
punished by a fine only, but the fact of its 
truth, and therefore no longer a slander, is 
punished by the death of the woman. This is a 
most striking proof of the lower room in social 
judgment awarded to the female Israelite. We 
notice also that the power of the master over his 
servant was absolute, but that the master suffered 
a penalty if his servant or slave died under 
castration ! Ex. xxi. If he was maimed, he 
was by this fact allowed his freedom. The rule 
as to Hebrew slaves is very interesting. It is 
too long to be quoted here, but it can be easily 
mastered by a reference to Ex. xxi., Deut. xv., 
Lev. xxv. 

We notice that there is no protection legally 
allowed to strangers, and so we find kindness and 
protection enjoined as a sacred duty. 

We believe that the old list of " Prohibited 
Degrees," which we saw placed in churches in 



BIBLE LAW. 11 

our infancy, and is still to be seen, is in all 
respects enforced by our presenl Law. Bui we 
arc not quite sure of this. We can only re- 
member the \ ague sense of mystery underlying I he 
clause, which was always put in the largest type : 

"A MAN MAY NOT MARRT Ills GRANDMOTHER." 

Another most interesting Law must be carefully 

noticed, and if possible, more deeply studied. 

In cases of* accidental homicide, there was mostly 

an ''avenger of blood" to be looked for. To 
© 

escape this untoward follower, cities of refuge or 

sanctuaries were named, and in these the poor 

wretch was safe until the death of the high 

© 

priest. 

As to the legal penalty of adultery, are we 
quite sure that, according to results, we have 
greatly improved upon the old Bible Law ? 
Under this the punishment was death of both 
offenders. Was it the fear lest the population of 
the world should be so very seriously lessened 
that gradually brought this Law to less than a 
penal one, so that at this day a Royal ''Com- 
mission " is placed on the offence in the shape of 
the absolute freedom of the offenders to seek for 
another opportunity .' 



L2 LEGAL LORE. 

Just a few words more as to those who inter- 
preted the Law. These were the Priests and 
the Levites. The "Judges" as we read of them 
in the book of that name, had, with the exception 
of Samuel, mostly to do with the settlement of 
political disputes, and the leading out of the 
people to victory or defeat, as the case might be. 
But in later times the power of the Sanhedrim 
was undoubtedly great. 

The king's power was legally limited. But so 
it is, and has been, in all ages and in all 
dominions in tlieory ! Yet we find Rehoboam 
expelled hy Jereboam, and the latter as despotic 
as the former, just as we find a firm will in 
Cromwell after the despotism of Charles, in what 
had been then for centuries the most "Con- 
stitutionally " governed country in the world ! 



Sanctuaries. 

By William E. A. Axon, f.r.s.l. 

IN all ages men have attributed a special 
sanctity to certain localities, usually those 
devoted to the purposes of worship, and this 
sentiment has in many lands been utilised in the 
interests of mercy by exempting those within the 
precincts from arrest for some, or even all. crimes 
and offences. In the earlier stages of develop- 
ment, the punishment of crime was not regarded 
as a duty of the community. l>ut as an obligation, 
or privilege () f the injured or of those nearest to 
him in blood or social relationship. Thus the 
son of a murdered man had the right to murder 
the murderer. The general principle of the 
earlier forms of justice is the lex talionis, bul the 
infliction of the penalty was mostly in the 
discretion of the avenger. He might be afraid 
to attempt to slay a strong or powerful homicide, 
and be willing to pardon the offence i'^v a money 
consideration. A criminal who took refuge in a 
sacred place secured a1 least a breathing time in 



1 \ LEGAL LORE. 

which his friends might effect a compromise with 
his adversary. Greece had its famous asyla, hut 
the custom of our own country was probably 
influenced from Hebrew rather than classical 
sources. In the narrative of the death of Joab, 
the hesitation of Benaiah shows that it was 
unusual to slay one who had taken hold of the 
horns of the altar. The six Cities of Refuse 
were appointed as places of safety for involuntary 
homicides, where they were protected from the 
a vender of blood. Amongst our Anglo-Saxon 
ancestors, the Church exerted a moderating 
influence. Every consecrated church had the 
right to shelter the fugitive from justice for 
seven days, and when the building was needed, 
he might be placed in a house provided for that 
purpose by the church, which was not to have 
more doors than the church itself. If the criminal 
was dragged forth from his refuge, the violaters of 
the sanctuary were fined in varying degrees 
according to the rank of the ecclesiastical edifice. 
In addition to the inherent right of each church, 
special privileges were conferred on certain 
places by the exercise of the royal prerogative. 
In 1378, it was decided that the property of 
fraudulent debtors who had taken sanctuary 



sancti-.\i;m> 15 

should be liable for the satisfaction of the claims 
of their creditors. In L486, Pope tnnocenl 
VIII. issued a bull relating to English sanctu- 
aries, by which it was provided thai when the 
refugee left his asylum, he lost his righl of 
protection, even though he subsequently returned 
to the sanctuary. At the same time, the king 
was empowered to appoint keepers to look after 
those who having been accused of treason, had 
taken sanctuary. 

Great changes were made in the law during 
the reign of Henry VIII. Traitors were wholly 
exempted from the privilege; those abjuring the 
realm were not actually banished, but were to 
remain throughout life in the sanctuary, and if 
they left it and committed any offence, they might 
then be brought to trial. All inmates were to 
wear a badge twenty inches in length and 
breadth, were forbidden the use of weapons, and 
were not to leave their lodgings between sunrise 
and sunset. In 1538, the right of sanctuary 
was further restricted, and Wells, Manchester, 
Northampton, York, Derby, and Launceston were 
declared sanctuaries. Manchester found this 
privilege to be of such doubtful value that two 
years later it was transferred to Chester, and 



16 LEGAL LORE. 

afterwards to Stafford. In the reign of James I., 
the right of sanctuary was abolished almost 
everywhere. The Palatine Counties had their 
special sanctuaries. In Cheshire, Hoole Heath, 
( hermai'sh, and Rudheath were such places of 
refuse. The abbey of Vale Royal had also a 
grant. But generally the County Palatine of 
Chester was a place of resort for those who had 
come into conflict with the law in other parts of 
the kingdom, and it was not until the reign of 
Charles II. that the king's writ ran in the 
palatinates and other privileged places. Many 
privileged places in London, Westminster, and 
South wark were brought within the regular 
jurisdiction in the reign of William III. and 
George II. 

We have an instructive picture of the working 
of the sanctuary system in the case of Man- 
chester. The Act of 32 Hen. VIII., c. 8, 
abolished the right of refuge in all places except, 
and the exception is a considerable one — churches, 
hospitals, and churchyards. Perhaps a more 
important exception was that sanctuary was to 
be denied to those guilty of murder, rape, 
highway robbery, burglary, house-burning, or 
sacrilege. Whilst abolishing many sanctuaries, 



SANCTUARIES 17 

certain additional places were named as cities of 
refuge for minor offenders. One of these was 
Manchester. A year later the town petitioned 
to be relieved from this distinction. The in- 
habitants set forth that Manchester had a greai 
trade in the bleaching of linen yarn, and in the 
making of linen and woollen cloths and dressing 
of cotton, and that the influx of dissolute persons 
to the sanctuary had caused serious damage to 
the prospects of the town, which, having no 
mayor, sheriff, or bailiff, and no jail, was badly 
circumstanced for dealing with these lawless 
invaders. The request was granted, and the 
sanctuary removed from Manchester to Chester. 
But the city of the Deva found it desirable to 
obtain relief, and a further removal was made to 
Stafford. 

The fridstool at Hexham still remains, although 
nearly everything else of the Saxon foundation 
has perished. This "chair of peace" was the 
central point of the sanctuary, which extended a 
mile around. A Durham example of the work- 
ing of the law may be cited. 

"Memorandum: That on the L 3th day of the month 
of May, A.D. 1464, one Colson, of Wolsyngham, Durham, 

who hail been detected in a theft, and therefore put and 



18 LEGAL LORE. 

detained in gaol, at length contrived to escape, and fled 
to the Cathedral Church of Durham, in order to avail 
himself of its immunities, and whilst he was there stand- 
ing near the bier of St. Cuthbert, prayed, that a Coroner 
might be assigned to him. Upon John Raket, Coroner 
of the "Ward of Chester in Strata (sic) coming to him, 
the same Colson confessed the felony, making upon the 
spot the corporeal oath that he abjured the realm of 
England, and would withdraw from it as soon as he 
could conveniently, and would never return thither, and 
which oath he took at the bier of St. Cuthbert in the 
presence of Master George Cornworth, Sacristan of the 
Cathedral Church of Durham ; Ralph Bows, Knight and 
Sheriff of Durham ; John Raket (the Coroner) ; Robert 
Thrylkett, Deputy Sheriff; Hugh Holand, and Nicholas 
Dixson, and of many others ; by reason of which 
renunciation and oath all the dress of the said Colson 
belonged to the said Sacristan and his office ; wherefore 
the said Colston was enjoined to take off to his shirt all 
his garments, and deliver them to the aforesaid Sacristan, 
and he did so, placing them all into his possession, the 
Sacristan gave up and delivered to him again, gratuit- 
ously, all his dress that he had up to this occasion been 
clothed in ; and after that Colstone withdrew from the 
Church, and was handed over to the nearest constable by 
the aforesaid sheriff, and so on from constables to con- 
stables, holding a Avhite cross made of wood as a fugitive, 
and so he was to be conducted to the nearest seaport to 
take vessel as one never to return. This was done on 
the day, month, and year aforesaid." * 



* This and other documents have been collected by Mr. T. J. de' 
Massinghi, whose monagraph on " Sanctuaries" (Stafford, 1S88) is the 
chief source of information on the subject. 



SANCTUARIES. 19 

The system was one that led to gross abuse. 
It was held that the right did qo1 extend to others 
than those whose offences entailed forfeiture of 
life and limb, but in practice knavish debtors, 

fraudulent executors, etc., availed themselves of 
the protection. There was plenty of scope for 
dispute as to jurisdiction. In 1427, the Abbot 
of Beaulieu was required to give proof of his 
right to shelter William Wawe, who is described 
as as heretic, traitor, common highwayman and 
public robber. " Wille Wawe was hanged," is 
the sum of the matter as recorded by Stowe. 
Between 1478 and 1539, at Durham, 283 persons 
took refuge who were, as principals or accessories, 
accused of homicide. There were sixteen debtors, 
four horse-stealers, nine cattle-stealers, and four 
house-breakers. One had been charged with 
rape, and seven with theft. One had been back- 
ward in his accounts, one had harboured a thief, 
and one had failed to prosecute. Sir John 
Holland, in revenge for the death of his esquire, 
killed the son and heir of Hu^h, second Earl of 
Stafford, and then took sanctuary at Beverley. 
The murderer, in this case, was the half-brother 
of Richard II., but it was with great difficulty 
that the king was induced to grant a pardon. 



20 LEGAL LORE. 

The church of St. John of Beverley had a 
charter from Athelstan, and near the altar was the 
Fridstool, or chair of peace, " to which what 
criminal soever flies hath full protection." The 
privilege extended for a radius of about a mile 
round the minster, and the limits were marked by 
stone crosses. Infraction of the right of 
sanctuary was punishable by severe penalties, and 
to take a refugee from the Fridstool was to 
incur both secular and ecclesiastical penalties, the 
latter extending to excommunication.* 

The widow of Edward IV. fled with her younger 
children for safety to the sanctuary of West- 
minster after her eldest son had fallen into the 
keeping of the Duke of Gloucester. Sir Thomas 
More reports the discussion in the Council of the 
Protector, and the arguments used by Cardinal 
Bourchier, which induced the queen to give up 
the Duke of York. The boy king, who was 
never crowned, and his brother were murdered in 
the Tow T er. It is noteworthy that this unfor- 
tunate monarch was born in the sanctuary of 
Westminster when his father was in exile. 
Skelton, the poet, died in this same sanctuary. 

* See Andrews' "Old Church Lore," 1891, and the authorities 
there cited. 



SANCTUARIES. 21 

The privileges of the sanctuary were qoI 
always respected. When Geoffrey, Archbishop 

of York, took refuge in St. Martin's Priory, 
Dover, he was dragged from the altar in his 
pontifical robes by order of the bishop of Ely, who 
was then Chancellor of the Kingdom. But this 
arbitrary proceeding was not the least of the 
causes of the downfall of William of Longchamp. 
When William Longbeard, who had been con- 
demned to death, took sanctuary at St. Mary-le- 
Bow, Hubert de Burgh ordered the church 
tower to be set on fire to compel him to come 
forth. Longbeard abandoned his place of refuge, 
and was dragged to Tyburn, and there hanged. 
But although de Burgh was Archbishop of 
Canterbury and Justiciary of the Kingdom, and 
the Church was his own peculiar, his violation of 
sanctuary led to the loss of his great secular 
disrnitv. Later, when he had himself to seek 
refuge, a great debate arose as to his 1 wiving been 
forcibly taken from a sanctuary, and he was 
restored to its protection, and escaped to Wales. 

Whilst the same rights of sanctuary existed in 
Ireland and in Wales, they wire apparently nol 
made use of to any great extent. In Scotland, 
the churches of Wedale, near Galashiels, and of 



22 LEGAL LORE. 

Lesmahagow, near Lanark, were the most famous 
of the religious sanctuaries. The latter had also 
a royal charter from David I. These sanctuaries 
ended with the Reformation. The abbey of 
Holyrood and its precincts, which include Arthur's 
Seat and the Queen's Park, gave protection to 
debtors until, by the abolition of imprisonment for 
debt, its privileges ceased to have any meaning. 
One of those who thus sought refuge at Holyrood 
during a part of his career was Thomas de Quincey. 
Sanctuaries probably served a useful purpose in 
ages when the law was harsh and indiscriminate 
in its punishment of offenders. The limited 
protection afforded by the Church sanctuaries 
at least gave an opportunity for the first heat 
of revengeful feeling to subside, and the greater 
sanctuaries protected not merely vulgar offenders, 
but those whom the stormy tide of politics had 
placed at the mercy of their enemies. As the law 
became stronger, and the course of justice more 
certain, the need for these refuges ended, and those 
that continued were public nuisances, and mere 
centres of crime and anarchy, such as Scott 
has described for us in his picture of Alsatia. We 
may be thankful that sanctuaries are now merely 
objects of antiquarian interest and speculation. 



trials in Superstitious R$ce. 

By Ernest H. Bank. 

IN superstitious ages, when belief in the power 
of the law to adjust all quarrels, to hold the 
balance equally between man and man, and to 
accord to each one his rights, was less prevalent 
than it is at the present daj', disputants naturally 
resorted to other tribunals for the settlement of 
their claims. A perfect system of law was 
impossible ; what law existed was arbitrarily 
administered, often for the benefit of the most 
powerful litigant, and the claimant with only justice 
on his side often had the mortification of seeing a 
verdict given against him. During the develop- 
ment of a system of law-giving, when the 
accumulated experience of humanity had not 
sufficed to produce perfection, man in his dark- 
ness, his ignorance, and superstition, turned to 
the supernatural, and devised certain ceremonies 
by which the judgment of God might be evoked 
to demonstrate the <>uilt or innocence of the 
accused. 



24 LEGAL LORE. 

The antiquity of the ordeal, as it was called, 
cannot be measured. Such a form of trial is found 
to have existed in the earliest ages, and even now 
traces of it linger among savage tribes of the 
earth. In Africa especially the ordeal is well 
known. During his travels among the negro 
tribes north of the Zambesi, Dr. Livingstone 
encountered the curious practice of the " mauvi," 
which consisted of making all the women of a 
tribe drink an infusion of " goho," for the purpose 
of ascertaining which of them had bewitched a 
particular man. The accused women were drawn 
up in a row before the hut of the king, and the 
drauo-ht administered to them. Those who were 
unable to retain the horrible decoction, and 
vomited, were considered innocent of the charge : 
those who were purged were adjudged guilty, 
and put to death by burning. 

The Calabar bean is also used by the natives 
of Africa in the form of an emulsion as an ordeal 
for persons accused of witchcraft, proof of in- 
nocence consisting of ability to throw off the 
poison by vomiting. Among the Barotse tribes 
the process is conducted by deputy, the testing 
liquid being poured down the throat of a dog 
or cat, and the accused person being treated 



TRIALS IN SUPKIiSTITlol's ACES. 25 

according to the etl'eet produced on the animal. 
Among the Dyak tribeslumps of salt are thrown 
into a bowl of water by the accuser Jind accused, 
and judgment is given againsl the owner whose 
lump disappears first. Another method adopted 
by the Dyaks is for each of the two parties to 
choose a mollusc, and to squeeze over it a few 
drops of lime-juice; the owner of the mollusc 
which moves first under the acid stimulant losing 
the case. Ratzel mentions that among the Malay 
tribes ordeals by fire, ducking, pulling a ring out 
of boiling water, or licking red-hot iron, are still 
frequent. Where the ordeal fails to produce the 
desired result, wager of battel, in reality another 
form of ordeal, is resorted to. Among the Tagals 
it is usual to light a consecrated candle, and to 
consider the person guilty of the crime under 
consideration to whom the candle fiame is blown 
during the performance of the ceremony. The 
Igorrotes have a more painful method of fixing 
sruilt. The accuser and the accused are placed 
together ; the backs of their heads are scratched 
with a sharply-pointed bamboo stick, and the 
man who loses most blood also loses his case. 

In Hawaii ordeals are administered by the 
priests, the suspected person being compelled t«> 



26 LEGAL LORE. 

hold his hands over consecrated water, and 
adjudged guilty if the liquid trembles in the 
vessel while the priest looks at him. The 
Siamese have a form of ordeal which consists 
of making the two parties to a suit swallow 
consecrated purgative pills, the man who retains 
them for the greater length of time winning the 
case. 

Even among the comparatively enlightened 
races of the peninsula of India, ordeals of the 
most elaborate and curious character are practised 
at the present time. Warren Hastings mentions 
that in his day no fewer than nine forms were 
in use among the Hindoos. The ordeal of the 
balance was commonly employed, and is still in 
force in certain districts. The beam is adjusted, 
and both scales made perfectly even. After the 
accused has been bathed in sacred water, and the 
deities worshipped, he is placed in the scale-pan 
and carefully weighed. When he is taken out 
the Pandits pronounce an incantation, and place 
round his head a piece of paper setting forth the 
charge against him. Six minutes later he again 
enters the scale, and the balance is called upon to 
show his fault or innocence. If he weigh more 
than before, he is held guilty ; if less, innocent ; 



TRIALS IN SUPERSTITIOUS A<;ES. 27 

if exactly the same, he must be weighed a third 
time, when, according to the Mihicshrnl, a 
difference in his weight will be observable. 
Should the balance break down, the mishap 
would be considered as proof of the man's guilt. 
The ordeal of the balance is not altogether 
unknown in English history, for an incident is 
recorded in which Susannah Haynokes, of Ayles- 
bury, was accused of bewitching her neighbour's 
spinning-wheel, and preventing it from working 
properly. Susannah loudly protested her in- 
nocence, and demanded an ordeal to prove it. 
She was taken to the church, and weighed in a 
semi-nude condition against a copy of the Bible, 
and being able to outweigh the Scriptures, was 
considered to be innocent of the offence charged 

o 

against her. Possibly it never occurred to the 
owner of the spinning-wheel that lack of oil was 
the cause of its refusal to go round. 

Among other ordeals in use by the Hindoos is 
that of iron, the accused being required to lick a 
red-hot bar of the metal. If his tongue be burnt, 
he is considered guilty, if not, he is reckoned 
innocent, but it cannot be supposed that among 
tribes addicted to this practice the injury to the 
tongue is considered sufficient punishment for 



28 LEGAL LORE. 

the offence with which the suspect is charged. 
The poison ordeal, employed also, it may be 
noted, by the Hovas of Madagascar, is commonly 
practised. A small quantity of visha?td{/a, a 
poisonous root, is mixed with clarified butter, 
which the accused must eat from the hand of 
a Brahman. If the poison produce no visible 
effect, he is absolved ; otherwise, condemned. 
In other cases the hooded snake called ndga is 
placed in a deep earthen pot, from which the 
accused has to take a ring, seal, or coin without 
being bitten, when he is considered innocent. In 
trial by the Cosha the accused is made to drink 
three draughts of water in which images of 
the Sun, of Devi, and other deities have been 
washed. If, within fourteen days, he is afflicted 
with any form of sickness, he is considered guilty. 
For the fire ordeal an excavation is made in 
the ground, and filled with burning pippal wood. 
Into this a person must walk bare-footed without 
hurt in order to prove his innocence. Hot oil 
ordeals are also in force, when the accused has to 
thrust his hand into the liquid without being 
burned ; and chewing a grain of consecrated rice, 
which, if it comes from the man's mouth dry 
or stained with blood, is considered proof of his 



TRIALS IX SUPERSTITIOUS A.GE8. 29 

ofuilt. At other times a silver image of the 
Genius of Justice, called Dharma, is tin-own 
with an image of iron or clay, called Adharma. 

into an earthen jar ; and the accused is acquitted 
if he bring out the silver image, but condemned 
if he draw forth the iron. 

The history of the middle ages furnishes 
numerous examples of ordeals employed in the 
settlement of disputes, which in the absence of a 
strong and impartial system of law-giving, found 
great favour with the people of all ranks. They 
were peculiarly distinguished by the appellation 
of Judicium Dei, or judgments of God, and some- 
times called vulgaris purgatio. The law of the 
Church sanctioned the ordeal throughout Europe 
for a considerable period, and faculties were freely 
given by the clergy for the performance of these 
strange ceremonials. Indeed, the whole business, 
as a judgment of God, was frequently conducted 
by the servants of the Church, always in con- 
secrated ground, and the sacred edifice itself was 
occasionally requisitioned in order to add greater 
solemnity to the proceedings. The ordeal of fire, 
practised, curiously enough, by the Greeks in the 
time of Sophocles, was allowed only to persons of 
high rank. The accused was required to carry 



30 LEGAL LORE. 

a piece of red-hot iron for some distance in his 
hand, or to walk nine feet, bare-footed and blind- 
fold, over red-hot ploughshares. The hands or 
feet were then immediately bound up, and in- 
spected three days afterwards. If, on examination, 
no injury was visible, the accused was considered 
innocent ; if traces of the burning remained, he 
was reckoned guilty, and received punishment 
commensurate with his offence, without any 
discount for the harm he had already suffered. 
The most notable historic instance of this form 
of ordeal is that of Queen Emma, mother of 
Edward the Confessor. She was accused of a 
criminal intrigue with Alwyn, Bishop of Win- 
chester, and condemned to the ordeal of fire, 
which, on this particular occasion, took the form 
of nine red-hot ploughshares, laid lengthwise at 
irregular intervals, over which she was required 
to walk with bandaged eyes. She passed success- 
fully through the severe trial, and at the conclusion 
innocently asked when the ordeal was about to 
begin. The Queen's innocence was, to the 
popular mind, established more substantially 
than would have been possible in any existing 
court of law. She was not the only gainer by 
the restoration of her reputation, for in consider- 



TRIALS IN SUPERSTITIOUS AGES. 31 

ation of the success which had attended her, she 

settled twenty-one manors on the Bishopric and 
Church of Winchester. 

In the Eastern Empire the fire ordeal was 
largely used by the Emperor Theodore Lascoris 
for the discovery of the origin of the sickness 
with which he was afflicted. His majesty 
attributed the malady to magic, and all suspected 
persons were required to handle red-hot iron in 
order to establish their guilt or innocence, ''thus 
joining," as an ancient scribe exclaims, " to the 
most dubious crime in the world the most dubious 
proof of innocence." 

Fire, as we have said, was employed for persons 
of high rank : those of baser degree, especially 
bondsmen and rustics, were tried by the ordeal of 
boiling water. " I will go through fire and water 
for my friend" was a common expression in the 
middle ages, and, though having lost its original 
significance, the saying has persisted to the present 
time as a declaration of self-sacrifice. The accused 
person was required to take a stone from a pan of 
boiling water, to insert the hand and wrist into 
the liquid, and in case of the triple ordeal, to 
plunge the arm in up to the elbow. When cold 
water was employed, and in cases of witchcraft 



32 LEGAL LORE. 

this was generally resorted to, the suspect was 
flung into a river or pond. If he floated without 
appearance of swimming, he was pronounced 
innocent ; if he sank, he was condemned as guilty 
—rather a superfluous proceeding, considering that 
the man was in all probability already drowned. 

It would be goino- too far to assert that in all 
cases these ordeals were carried out with the 
strictest impartiality and consideration for the 
ends of justice. Means were not unknown to 
circumvent the peculiar forms of the trial, and 
precautions were often taken by the clergy, as 
mio-ht have been done in the case of Queen 
Emma, to protect those whom they desired to 
clear of suspicion. It is a well-known fact that 
white-hot iron may be licked with impunity, and 
the Mevleheh dervishes are proficient in the trick 
of holding red-hot iron between their teeth. 
Sometimes cold iron, painted red, was employed, 
and at others the fire reduced in temperature at 
the critical moment, the suspect receiving only 
such injury as would heal in the three days 
allowed before his hand was examined. Artificial 
preparations were frequently employed, while the 
suspect had at times the option of going alone 
into the church, and in all cases of keeping the 



TRIALS IN SUPERSTITIOUS A.GES. 33 

crowd of spectators at a distance, which made 
minute inspection of the proceedings impossible. 

Another form of ordeal was the judicium 
cruris, or trial of the Cross, employed largely in 
criminal cases. When an accused person had 
declared his innocence on oath, and appealed to 
the judgment of the Cross, two sticks were 
prepared precisely like one another. The figure 
of the Cross was cut upon one of these sticks, and 
the other left blank. Each of them was wrapped 
in fine white wool, and laid upon the altar or the 
relics of the saints, after which a prayer was 
uttered that God might discover by unmistakable 
signs whether the prisoner was innocent or guilty. 
The priest then approached the altar, took 
up one of the sticks, and uncovered it. If it 
happened to be the stick marked with the cross, 
the prisoner was pronounced innocent ; if it were 
the other, he was condemned as guilty. A 
different form of this ordeal was adopted when 
the judgment of the Cross was invoked in civil 
cases. The judges and all parties to the suit 
assembled in the church. Representatives, 
generally the youngest and strongest priests, 
were then chosen, and required to stand one on 
each side of a crucifix. At a given signal they 



34 LEGAL LORE. 

stretched out their arms at full length, so as to 
form a cross with their body, and in this painful 
posture they continued to stand during divine 
service. The party whose representative dropped 
his arms first, or shifted his position, lost his 
cause. History records a dispute over a 
monastery, between the Bishop of Paris and the 
Abbot of St. Denis, which was settled in this 
manner. A crowd assembled, and arranged bets 
on the result, but those who supported the 
Bishop's man were sadly disappointed, for he 
dropped his arms at an early stage, and lost the 
cause of his employer. The ordeal of the Cross 
was abolished by Louis de Debonnaire in 816, on 
the ground that it was irreverent in character. 

Ecclesiasticism also played a prominent part 
in the ordeal of the corsnedd, to which 
persons accused of robbery had to submit. 
The corsnedd was a piece of bread made of un- 
leavened barley, to which cheese made of ewe's 
milk in the month of May was added. Over 
the whole, one ounce in weight, a form of 
exorcism was uttered, desiring of the Almighty 
that the corsnedd might cause convulsions and 
paleness, and find no passage, if the man were 
really guilty, but might turn to health and 



TRIALS IN SKPEKSTITIOI'S AOES. 35 

nourishment if he were innocent. The practice 
is strongly remindful of the trial of jealousy in 
use among the Israelites, by which an unfaithful 
woman was compelled to drink holy water con- 
taining dust of the floor of the tabernacle, 1 1 x ■ 
belief being that she would be stricken with 
illness if she were guilty. The corsnedd was 
given to the suspected person, who at the same 
time read the sacrament. Godwin, Earl of Kent, 
was, in the reign of Edward the Confessor, 
accused of murder, and forced to the ordeal 
of the corsnedd, when, according to ancient 
chroniclers, the consecrated food stuck in his 
throat, and caused his death. Both the ex- 
pressions, " I will take the sacrament upon it," 
and " May this morsel be my last," are supposed to 
have been derived from this curious form of law- 
giving. A somewhat similar custom is in vogue 

© o © 

in Russia at the present day. Balls of bread are 
made and dropped into consecrated water, the 
priest meanwhile reciting the formula : — " Ivan 
Ivanoff, if you are guilty, as this ball falls to 
the bottom, so your soul will fall into hell." 
As a rule the culprit confesses immediately. 
In Ceylon, also, a similar form of ordeal is by 
no means unusual. A man suspected of theft is 



36 LEGAL LORE. 

required to bring the person he holds in greatest 
affection before the judge, and placing a heavy 
stone on the head of his substitute, say, " May 
this stone crush thee to death if I am guilty of 
the offence." The Tartar sets a wild bear and a 
hatchet before the tribunal, saying as he does so, 
"May the bear devour me, and the hatchet chop 
off my head, if I am guilty of the crime laid to 
my charge." 

Another form of ordeal which was cherished 
and practised with assiduity was that of the bier, 
founded on the belief that the body of a murdered 
man would show signs, by bleeding or movement, 
when his assassin approached. The accused had 
to place his hand on the naked breast of the 
corpse, and declare his innocence, though the 
slightest change in the body was considered proof 
of his guiltiness. This method of finding out 
murderers had its origin, it is believed, in 
Denmark, where it was in the first instance adopt- 
ed by King Christian II. for the discovery of the 
murderer of one of his courtly followers. The belief 
has survived to a certain extent to the present day, 
for even English peasants still expect all persons 
present at a funeral to touch the body in proof 
of their bearing no ill-will towards the dead man. 



TRIALS l\ SUPERSTITIOUS AGES. 37 

Not so frequently employed, but still occasion- 
ally mot with in ancient history, was the ordeal of 
compurgation, where the innocence of the accused 
was sworn to by his friends, and judgment wenl 
against the party whoso kindred refused to conic 
forward, or who failed to provide the necessary 
number of compurgators. It was a conflict of 
numerical strength, and the higher number 
carried the day. 

Another custom, still surviving, was to tic a 
key in a Bible opened at Psalm L, verse 18, 
" When thou sawest a thief, then thou con- 
sentedst with him," and balance the whole, the 
belief being that the book would turn in the 
hands of a guilty person. 

Challemnno- the accuser to mortal combat was 
a proceeding which found much favour with the 
warlike spirit of the middle ages. Of course it 
was considered that Providence would defend the 
risrht, even if a miracle were needful, but never- 
theless each party placed considerable reliance on 
his own strength of arm and fighting skill. These 
judicial combats were in ancient times practised 
amoner the Jews, and were also common in 
Germany in remote ages, though they do not 
find mention in A.nglo-Saxon laws, and were 



38 LEGAL LORE. 

apparent]} 7 not in use in England until after the 
Norman Conquest. In Germany a bier was 
placed in the midst of the lists, accuser and accused 
stood respectively at the head and foot, and 
remained for some minutes in profound silence 
before they commenced fighting. Civil, criminal, 
and military cases were, in the absence of sufficient 
direct evidence, decided by means of the judicial 
combat or wager of battel. The offended party 
had the right to challenge his accuser to settle 
the dispute by force of arms, and the forms and 
ceremonies connected with the trial are well 
illustrated in the opening scenes of "King Richard 
II." The combat took place in the presence of 
the court itself, Heaven being expected to give 
the victory to the innocent or injured party. It 
was commonly resorted to in charges of treason, 
as in the above-mentioned dispute between Henry 
Bolingbroke and Thomas Mowbray, when the 
ceremonies were of an imposing character. As 
in the majority of ordeals, deputies could be 
chosen to perform the requisite duties, but the 
principals were in all cases answerable for the 
consequences. No commoner was allowed to 
challenge a peer of the realm, nor could the 
citizens of London, for some obscure reason, 



TRIALS IN SUPERSTITIOUS AGES. 39 

indulge in these popular forms of legal ad- 
ministration. Each of the combatants professed 

his willingness to make good his claims, body for 
body — 

"For what 1 speak 
.My body shall make good upon this earth, 
Or my divine soul answer it in heaven." 

Neither sorcery nor witchcraft had to be em- 
ployed, and the battel was to continue until the 
shades of evening had fallen, and the stars 
appeared. If the accused were killed, his blood 
was attainted, but if he were only vanquished, he 
was immediately condemned to an ignominious 
death by hanging, providing he accepted his fate 
without demur. The defeated party, however, 
might crave his life, in which case he was allowed 
to live as a recreant, on condition that he 
retracted unreservedly the false statements that 
he had sworn. 

At the Durham Assizes, on August 6, 1638, 
a wager of battel was offered and accepted, for 
deciding the rights to land at Thickley, between 
Ralph Claxton, demandant, and Richard Lilburne, 
tenant. According to an old chronicle, "the 
defendant appeared at 10 o'clock in the forenoon, 
by his attorney, and brought in his champion, 



40 LEGAL LORE. 

George Cheney, in full array, with his stave and 
sandbag, who threw down his gauntlet on the 
floor of the court, with five small pieces of coin 
in it. The tenant then introduced his champion, 
William Peverell, armed in the same manner, 
who also threw down his gage." But the 
champions, instead of being allowed to fight, 
were ordered to appear at the Court of Pleas in 
the following month. Legal arguments followed, 
and the trial by battel was eventually postponed 
indefinitely. 

In criminal trials no deputies were allowed, and 
the parties were compelled to settle their quarrel 
in person, unless one of them was a woman, an 
infant, or a man over the age of sixty, or was 
afflicted with lameness or blindness. In the case 
of any of these disqualifications, trial by jury 
could be claimed and insisted upon. One of the 
most remarkable wagers of battel occurred in 
1817. A young woman named Mary Ashford, 
living at Erdington, near Birmingham, was 
supposed to have been murdered early one 
morning when returning from a dance. Suspicion 
fell on Abraham Thornton, a partner of the 
previous night, who was tried for the crime and 
acquitted. Evidence for another trial was 



TRIALS IN SUPERSTITIOUS Ac lis. n 

collected, and Thornton was appealed by William 
Ashford, the direct heir male of the murdered 
woman. I Jut when, the proceedings commenced, 
Thornton's counse] took refuge under a very old 
Act, by which no man could be tried on a second 
charge of murder, on which he had been 
acquitted, except by wager of battel before the 
king, between the heir-at-law of the person 
murdered and the accused. The appellant, Mary 
Ashford's brother, declined the combat on the 
ground of physical inferiority, and Thornton 
was discharged. Immediately afterwards the 
antiquated law was removed from the Statute 
Book. 

This marked the end of trials by ordeal as 
recognised by law. The process of extermination 
had long been in progress, but popular opinion 
was against reform, and certain of these curious 
customs survived. A though the clergy had at 
first taken part in these ceremonials, and presided 
over them in church, they came in time bo 
discountenance them. The canon law declared 
against ordeals as being the work of the Devil, 
and a decree to this effect was issued in the 
eighteenth canon of the fourth Lateral) Council 
in November, L215. Upon this authority it was 



1-2 LEGAL LORE. 

thought proper, says Blackstone (as had been 
done in Denmark a century ago), "to disuse and 
abolish these trials entirely in our courts of justice 
by an Act of Parliament, Henry III., according 
to Sir Edward Coke, or rather by an order of 
the Kins: in Council." The actual date of the 
abolition of ordeals by fire and water was 1261 
On the Continent these forms of trial had been 
abolished by civil and ecclesiastical law much 
earlier, although in 1498 an attempt was made 
to test the doctrine of Savonarola by means of a 
challenge from one of his disciples to a Franciscan 
friar to walk through a pile of burning wood. 
Old customs die hard, and the incident is a 
curious and interesting instance of the persistence 
of a popular form of trial even among the 
members of a party by which it had been 
condemned. 



©n Symbols. 

By George Neilson. 

THE wayward fancies of mankind arc well 
illustrated in the diversity of symbolic 
observances, some never losing 1 their meaniic, 
some absolutely unintelligible in their historic 
form, and some as much characterised by a 
befitting dignity, as others are by the want of it, 
All once were self-explanatory and possessed a 
measure of propriety proportioned to the state of 
the people amidst whom they originated. But 
tradition is long, centuries elapse, each modifying 
a ceremony, and when the procedure emerges 
within the knowledge of record, it has often so 
lost touch with its surroundings, that it is 
hopeless to speculate how it arose. 

Symbols are drawn from and applied to every 
field of human activity. Of course in a general 
sense man expresses himself only so, and a regular 
alphabet is but a comparatively trifling advance 
on the language of signs. What wc call civiliza- 
tion, is at bottom little more than a clear 



-U LEGAL LORE. 

recognition of certain symbols of government. 
The Queen's crown, the Judge's ermine, the 
Mayor's mace, what are they else? The sceptre 
is only a glorified stick, of which the policeman's 
baton is a humbler shape. Each embodies the 
great thought that behind it stands a nation's 
determination to be ruled by law. 

In the history of law, symbol and the traces of 
symbol meet us at every turn. The middle ages 
teemed with them. Roman law had bequeathed 
not a few. Perhaps the most wondrous of them 
all is one that has long ceased to have any legal 
connection, although its mark is all-powerful over 
civilisation. How daring was the imagination 
which prompted the choice, for the heraldic 
badge of Christianity, of the dread emblem of 
capital punishment by crucifixion ! In the pure 
domain of the law of the early and middle ages, a 
perfect wilderness of symbols presents itself to 
eyes which strive to explore the origins of 
institutions. 

Law is ever beset by a tendency towards 
formalism, and in early times a severe insistence 
upon ceremony, no doubt, gave prominence and 
prescriptive sanction to symbolic acts. Law and 
custom after all only mean that the way things 



ON SYMBOLS. 15 

were done yesterday is the safesl way of doing 
ili. -in to-day. The acceptance of a common form 
implies a very large public consent, which is 
equally necessary to its abrogation, once it is 

accepted. No small part of its value lies in its 
certainty, "certainty which," Coke well says, "is 
the mother of quiet and repose." 

Hence the fixity and longevity of many em- 
blematic methods of performing acts affecting 
status or property rights. The constitution or 
discharge of slavery, or the transfer of a slave 
from one master to another, had a variety of set 
forms. A freeman might deliver himself to 
serfage by putting a leathern thong upon his 
neck. When a church was the donee, the 
ceremony might take place at the altar, and the 
man present himself there with cords round his 
throat. "Thus he offered himself," says an old 
record, "to the Almighty Lord." A coin or two 
on the head was also a customary part of the 
process. In the manumission or liberation of the 
slave, these coins struck off the head served the 
purpose of declaring him free, as did the 
companion symbol of open doors, or the placing 
him at four cross roads, and bidding him go 
whither lie would. Another common symbol of 



46 LEGAL LORE. 

enfranchisement was the delivery of an arrow, 
thought to denote the right confined to freemen 
of bearing arms. 

Even a short account of legal symbols would 
make a very large treatise. Single instances 
such as the ring, the staff, the glove, and the 
horn would each furnish material for an elaborate 
monograph. The theme would call for a dis- 
cussion of the great war of investitures, and 
would touch very many points of ecclesiastical, 
civil, and criminal law and history. The scope of 
the present unambitious article is only directed 
to a few illustrations in relation to the transfer of 
land, the act of divesting the old proprietor and 
clothing the new with his rights. Although such 
symbols usually had a connexion with the subject 
conveyed, there are many types in which that 
connexion is not readily traceable. Why for 
example amongst the Saxons should a resignation 
of all interest in an estate have been made by a 
gesture with curved fingers ? One can under- 
stand why a sod should be so often a token, but 
why does the glove play so large a part in 
Merovingian and Carolingian conveyancing? 
Was it, indeed, as German scholars speculate, 
because the donor metaphorically took it off and 



ON SYMBOLS. 17 

the donee put it on, making his the covered hand, 
the vestita manus, thai would defend the land 
conveyed? How came an eleventh century 
magnate to attest his renunciation of justiciary 
rights to a monastery "by cutting off the top of 
the silk band by which his fur robes were 
fastened to his breast, and with that segment 
re-investing three monks therein?" In tins case 
a portion of that silken band was carefully sewn 
up, as an adminicle of evidence, in the writ 
recording the transaction. How again came it 
that a claim of feudal service might be departed 
from by the delivery and placing of a wand 
(virgula) upon the altar? All these are much 
more personal symbols than real. • They are 
mainly guarantees of the grantor's good faith. 
They do not seem to be primarily emblems of 
possession. The contrast between these two 
classes will be best appreciated by considering 
types of the latter. 

When a purchaser proceeded to set up fresh 
boundary marks, or to take a spade and dig, or 
when he received delivery of a sod with grass or 
shrubbery upon it, or lifted from the ground the 
charter granted by the seller with amongst other 
things a sod laid thereon, the act of seisin, the 



48 LEGAL LORE. 

formal occupation is visibly completed. Of this 
class of symbol, the sod fcespes) is probably the 
best and most typical for a few words of illus- 
tration. We read of litigants laying judicial 
claim to land in the mall or public court by 
putting their spears into a sod, representative of 
the subject in dispute. We hear of the sods 
being cut in the shape of bricks, and of their 
being preserved as memorials, with the twigs 
growing in and incorporated with them. We 
hear of sods offered on the altar when the grant 
of land was being made to a church. We hear 
of transfer from one vassal to another being 
accomplished by the grantor delivering the sod 
to the over-lord, and the latter passing it on to 
the grantee. 

Of all the symbols employed in connection 
with feoffments, however, the rod (festuca) had 
the widest vogue on the continent. Not that it 
was restricted to transactions in land ; it was a 
more or less lineal descendant of the Roman 
stipulation, a contract visibly expressed by the 
parties breaking a straw between them. Under 
Charlemagne a renunciation by certain priests 
was made by them " holding straws in their 
hands and casting them from them before God 



ON SYMBOLS. l*' 

and his angels." Later this appears as a 
recoernised method of renunciation, bui with a 
rod substituted for the straw. Tn some eases the 
fact of renunciation is emphasised by the rod 
being not only thrown to the ground by the 
resigner, but trodden under foot when there. 
The role of the festuca was peculiarly important 
amongst the Frankish peoples. # Galbert of 
Bruges, a Flemish twelfth century historian, 
states that the counts of Flanders gave in- 
vestitures to their vassals, after receiving their 
fealty and homage, by a wand (virgula) held in 
hand, and he has a dramatic passage describing 
how the people of Bruges, in token of their 
renunciation of their feudal bond to Hacket the 
castellan, " picking up bits of stick exfestucated 
their homage and fealty," i.e. cast the rods from 
them, and so doing severed all connexion with 
their former chief. 

In England and in Scotland, this rod symbol 
(fastis et baculus) also played a large part. 
Bracton referred it specially to land without 
houses. Tenure by the verge, a species of copy- 
hold, had its name, we learn from Littleton, from 

* The material facts in this paper up to this point are derived from 
Thevenin'a Teztea relati/s mix Institution* privdes and Du Cange art. 
investitura. 

4 



50 LEGAL LORE. 

wn petih verge, delivered by the old tenant to the 
steward or bailiff of the manor, who re-delivered 
it to the new holder. Jordan Fantosme tells us 
that when Brien, messenger of Ranulf Glanvil, 
in 1 L 74, announced in Westminster the capture 
of the Scottish King at Alnwick, Henry II. 
rewarded him for his good news by handing him 
a stick (bastuncel), which vested him in ten 
librates of land. In Scotland the feudal re- 
signation by a vassal to his overlord for the 
re-in vesture of a fresh owner was effected by 
"staff and baton" (fastis et baculus), and 
references to those symbols occurred in every day 
conveyancing until far into the present century. 
Indeed this picturesque ritual was, strictly 
speaking, not abrogated, although made un- 
necessary, by the Act 8 and 9 Victoria ch. 35. 

The commonest conveyancing symbol for land 
in England was the formal delivery of turf or twig 
of the ground conveyed, made by a representative 
of the grantor, to a representative of the 
grantee. The most familiar in Scotland 
was the handing over of "earth and stone." 
This latter was the normal form of seisin, and its 
history goes far back, not only in Scotland, but 
on the continent as well. A curious Saxon 



ON SYMBOLS. 51 

Wend attests this. Widukind narrates ili.it 
some Saxons, having Landed from their ships in 
Thuringia, one of them, wearing a golden torque 
ami bracelets, met a Thuringian, who asked if he 
would sell his ornaments. The sly Saxon entered 
into an odd transaction ; the Thuringian gave 
him in exchange for his gold, a lapful of soil. 
The Thuringians rejoiced exceedingly over the 
smart bargain their countryman had made, but 
changed their tune when soon afterwards the 
Saxons claimed the land as theirs, purchased 
with their own gold, and by force of arms made 
good the demand. 

Our chronicles have a good many stories about 
symbols. In the Norman Brcvis Relatio, a 
sketch of the origin of William the Conqueror, 
is told of his grandfather, Duke Richard the 
Good, that once when staying at a monastery, 
after prayer in the morning he laid a spindle on 
the altar. Upon being asked what it meant, he 
named the manor which he had by so homely a 
symbol bestowed for the good of his soul. When 
the infant William came into the world, it was 
said, — and afterwards noted as prophetic — that 
when they laid him down upon some straw, the 
little hands each clutched a handful. Acquisitive 



52 LEGAL LORE. 

tendencies were foreshadowed ! The Roman cle 
Rou tells that in 1066, when William landed in 
England, he stumbled and fell, an omen which for 
the moment disconcerted his followers, but rising 
with a shout, he swore by the splendour of God 
that with his two hands he had taken possession 
of the land. Prompt to catch the occasion, one 
of his men ran forward to a cottage, tore a 
handful of thatch from the roof, and passed it to 
his chief, with the cry, " Receive this seisin," — 
quasi-ceremonial words which with William's 
pious, " God be with me," the curious may 
compare with the formalities of English livery 
in deed, as described (sec. 59), in Coke upon 
Littleton. 

The normal symbol of seisin for a house in 
England, was (before the Act 7 and 8 Victoria 
ch., 76, superseded these archaic ceremonies), 
was the ring or hasp of the door, known in 
Scotland for houses in burghs as ' ' hasp and 
staple." In the latter country also, there were a 
good many special types of symbol character- 
istically appropriate to seisin in special kinds of 
property. Thus for mills "clap and hopper," for 
fishings "net and coble," for teinds (Anglice 
tithes) a sheaf of corn, for the patronage or 



ON SYMBOLS. 53 

advowson of a church ;i psalm-hook and keys, 
attained the figurative purpose requisite. There 
were many others less familiar amongst them, 
one, a hat, worthy of a few words all to itself. 
Our own generation may not regard this as a 
particularly dignified symbol, but there is a cloud 
of witnesses to shew its very various applicability. 
The priest's cap or biretta was sometimes 
employed to instal him in a chaplainry or 
benefice. And apart from the place of the hat in 
the regulations of the tilting ring, it was 
occasionally used in Scotland as a symbol 
in connection with what were known as 
heirship goods. But it had in the twelfth 
century been accorded the very loftiest use to 
which secular symbolism could be turned. In 
1 175, King William the Lion, taken prisoner the 
year before, relinquished the independence of 
Scotland, and did homage to the English King 
at York, as a condition oi' his liberation. The 
contemporary records are silent regarding 
symbolic details, but in 1301 Edward I. stated in 
his letter to the Pope that " in token of his 
fealty, William the King of Scotland, had, on the 
altar of St. Peter's, at York, offered his cap 
(chwppelus), lance, and saddle, which until this 



5-4 LEGAL LORE. 

day remain and are preserved in said church," 
Any incredulity which a fair-minded Scot can 
entertain, regarding this allegation that the 
freedom of his country was once symbolically 
surrendered in King William's cap, will be 
materially lessened, and Scottish patriotism so 
tar consoled, by the recollection that under very 
similar circumstances the realm of England was 
in 1193 given away with the bonnet (pilleus) of 
the captive Richard I., who, thus (as Hoveden 
tells us), gave investiture of his kingdom to his 
arch-enemy, the Emperor Henry VI. This was, 
however, only formal : the Emperor at once 
re-invested King Richard in his realm with a 
double crown of gold, though subject to an 
annual tribute of £15,000 — a business transaction 
painfully illustrative of the Christian chivalry of 
the Crusades. 

The annals of Scotland boast one instance of a 
royal symbol much more regal than either of 
these two. About the beginning of the year 
1124, King Alexander I., restoring by charter to 
the Bishopric of St. Andrews an extensive tract 
of land, completed the grant according to Andrew 
of Wyntoun (vii., 5), in a truly stately fashion. 
He— 



o.\ SYMBOLS. 

( j-erl I ban bo 1 1m- awtare bryng 
Hys cuiuly sted oil' Arahy 
Sadelyd and brydelyd costlykly 
Coveryd with ;i fayn; mantlete 
< Ml' precyous and fyne welvel 
W'ytli his armwris offTurky 
That pryncys than oysid generaly 
And chesyd mast for thare delyte 
Wytli scheld and spere oil' sylvyr qwhyt. 

It was a special occasion, for Bishop Robert's 
appointment, which had led to the grant, was a 
Scottish victory over the pretensions of the See 
of York. There is an appeal to the imagination 
so strong in the scene, that, in spite of the 
interval of 300 years betwixt the event and this 
oldest record of it, one is slow to offer any 
criticism on the charger ; more especially as the 
entire verity of the silver spear is corroborated by 
Walter Bower's enshrining in his Scotichronicon 
the fact that in the fifteenth century it was doing 
duty as the shaft of the cross in the Cathedral. 
Yet the unexampled symbol, coupled with the 
analogy from York in 1 I7J, compels the sugges- 
tion, that perhaps during these 300 years an 
original capellus may have been mis-read as 
cdballus, or mistaken for Scottish c<t/>n/, and 
thus by the magic of mistranslation, a king's 



56 LEGAL LORE. 

cap may have been transmuted into an Arab 
steed. 

Whilst of course a crown was the standard 
symbol of investiture for a kingdom, inferior 
rights of principality were often typified by other 
things, such as a sword, a spear, or a banner. 
And as feudal forms were observed in the 
bestowal, so were they sometimes in the taking 
away. England dispensed with several of her 
monarchs, but apparently in no case was a 
deposition attended by the feudal solemnities. 
In Scotland when, in 1296, King John Balliol 
was pulled out of the throne by the same hands 
as had placed him in it, Edward I. spared his 
vassal little of the indignity of the situation. 
Balliol, deprived of his royal ornaments, with the 
ermine stripped from his tabard, resigned his 
realm by the symbol of a white wand. 

Than this Jhon tuk a quhyt wand 
And gave wp in till Edwardis hand 
Off this Kynryk all the rycht. 

No Scottish historian has noticed the absolute 
legal propriety of this, and it is worth noticing. 
By contemporary law (Britton, ii., 22), una 
blaunche verge was the recognised symbol of 
disseisin by consent. The thirteenth century 



ON SY.MI'.oLS. 57 

was very particular, oven in small things, about 
its law. Disseisin, provided for by statute of 
1429, in disputed successions to real property, 
and known to Scotland as the break hi"' of seisin, 
was symbolically affected — frangendo discum — by 
the curiously expressive act of breaking a dish or 
dishes, with fire underneath. 



3La\v unfcer the jfcufcal System, 

By Cuminc; Walters. 

TO the historian proper feudalism presents 
a wide subject with diverse points of 
interest, but its legal aspect is comparatively a 
small matter, and it can be considered without 
detailed reference to the whole vast scheme 
which existed from early German and Gothic 
times, and overspread the greater part of Europe. 
It is a common error to suppose that it was 
introduced into England by the Normans. 
William the Conqueror only superimposed a 
French form of feudalism upon that which 
already existed ; and all historians agree that the 
measures he adopted, the restrictions he made, 
and the original conditions he established, were 
evidence of his farseeing genius, and a master- 
piece of statecraft. His was a feudalism which, 
while giving the lords great personal power and 
influence, retained them still as the servants of 
the king, and totally prevented them from using 
their strength against the throne. In this 



LAW UNDER THE FEUDAL SYSTEM. 

respect the feudal system in England never 
resembled that of Germany and France, or even 
that which the Norman barons established in 

Scotland. The Conqueror had no intention of 
allowing the owners of territory to supersede his 
own authority, and to be beyond the sovereign's 
control. While, therefore, he allowed them all 
liberty in dealing with their dependents, he made 
it impossible for them to defy bis own authority, 
first by distributing- their possessions so that they 
could not have a great army of followers at 
command, and, secondly, by insisting upon a 
formal declaration of allegiance from both the 
barons and their vassals. The former, therefore, 
were not beyond the law, and the latter had 
nominally, if not actually, some right of appeal 
to the monarch. These points it is necessary to 
bear in mind for a full understanding of legal 
procedure during the long period feudalism 
prevailed. 

The feudal lord's claims upon his vassals were 
numerous. First came his claim to their military 
service. He could demand from them service as 
assessors in his courts of various fines and pay- 
ments and confiscations of land. He could 
dispose of females in marriage; not infrequently 



GO LEGAL LORE. 

lie consigned them to a debased existence. 
When the tenant was invested with possession 
of his feud or fief, he paid homage to his lord, 
that is, he proclaimed himself the " man " to help 
and to serve his master. Kneeling humbly 
before the baron, he took oath of fealty, and 
practically enslaved himself. It was here that 
King William showed his wisdom by ordaining 
that the oath of allegiance should be not only 
to the feudal superior, but to the monarch as the 
head of all, and thus he secured the ultimate 
service of all vassals to the crown, and deprived 
the barons of autocratic power. 

The Saxon feudalism had been of the most 
tyrannical character, the owners of slaves making 
their own laws, and carrying them out with the 
utmost barbarism. Records exist which prove 
that for slight offences mistresses were accus- 
tomed to order their servants to be scourged to 
death, or subjected to fearful tortures. For 
breaking a dish, or spilling wine from a cup, for 
example, a servant might have his ears cut off, 
his nose slit, or suffer the loss of his hand, 
according to the caprice or fancy of his lord or 
lady. While murderers and robbers could find 
sanctuary in the Church, servants had no such 



LAW UNDEIl THK FKUDAL SYSTK.M Gl 

refuge. They were torn away from the altar to 
which they clung in their terror, and none could 
or would intervene to protect them. According 
to the decree of King Ethelred, public punish- 
ments were to be mild, and death sentence* were 
seldom to be passed; but the sovereign's wishes 
had no effect upon the treatment of bondmen. 
High-born women were as cruel as their husbands, 
and King Ethelred's own mother is said to have 
beaten him so severely when he was a child that 
he regarded whipping instruments with horror 
to the end of his life. Flagellation was not 
recognised as a legal punishment by the Saxons, 
though a husband might beat his wife and incur 
no penalty, while the whipping of slaves was 
accounted no more than the whipping of animals, 
and perhaps less. For all other classes money- 
fines were almost the only authorished penalty, a 
fixed price being set upon persons of different 
degrees. But the slave had no real value, and 
hence could be mutilated or killed at the pleasure 
of his lord. 

The ideal of feudalism, never realised in 
England, was that the king and his tenants-in- 
chief should hold law-courts, which the tenant or 
the sub-tenants should be bound to attend to 



62 LEGAL LOKE. 

have their cases tried according 1 to statute rules. 
But the system was only imperfectly carried out, 
and the fact that the tenant-in-chief, or feudal 
lord, had the right to levy taxes (called 
" tallage " or " tailles ") on his vassels, speedily 
led to all sorts of tyranny and abuse. Still, the 
feudal courts could not engross the legislation for 
the excellent reason that the quick-witted Con- 
queror had preserved the Witanagenot and the 
courts of the shire and the hundred to check the 
barons. The latter made a big effort to introduce 
the Continental system of feudalism, by which 
each of them would have been supreme in his 
domain ; but the plans were defeated as we have 
seen. William's successors were men of a 
different stamp, and the system proved unwork- 
able in the hands of weaker men. " The prince," 
says Hume, " finding that greater opposition was 
often made to him when he enforced the laws 
than when he violated them, was apt to render 
his own will and pleasure the sole rule of govern- 
ment, and on every emergency to consider the 
power of the persons whom he might offend 
rather than the rights of those whom he might 
injure." The mischievous course pleased none, 
and the royal prerogative was at last system- 



LAW UNDKI: Till: FEUDAL SYSTEM. 63 

atically assailed by the barons in the time of 
John, and the Magna Charta wrestled from 
him. The concessions then made were of benefit 
to the barons rather than to the landless and 
dependent classes, and it remained for the third 
Edward to diminish their power and increase the 
liberties of the populace. 

Law in England during all this period was 
chiefly a system of oppression, proceeding stage 
by stage from the highest to the lowest. The 
revenues of the crown were obtained by extrava- 
gant rents, forfeits, taxes, reliefs, fines, aids, and 
other devices which show the amazing ingenuity 
of the extortioners. The result was that most 
tyrannical exactions were made in turn by the 
feudal lords, and the dependents groaned for six 
centuries under these lawless yet legalised oppres- 
sions. Personal property was at the mercy of 
the lords, who adopted the most cruel means to 
enforce their " rights." They, in turn, could be 
the victim of extortions, as was proved in the 
case of Roger of Dudley, who was summoned to 
receive the honour of knighthood in L233. He 
found the honour so expensive that he declined to 
appear, whereupon a writ was issued — " Because 
Roger de Someri, at the feast of Pentecost last 



G4 LEGAL LORE. 

past, has not appeared before the King to be 
girded with the military girdle, the Sheriff of 
Worcestershire is hereby commanded to seize on 
the house of Dudley and all other lands of the 
said Roger within his jurisdiction, for the King's 
use ; and to keep them with all the cattle found 
upon them, so that nothing may be moved off 
without the King's permission." The same 
Roger had a twelve years' dispute with William 
de Birmingham touching the service due for the 
manor of Birmingham, for which the latter was 
required to perform the service of eight knights' 
fees, a half and a fourth part, and also to do suit 
to the court at Dudley once every three weeks. 
In such wise did these cheftains rule. Another 
curious piece of law relating to the Dudley lands 
is told by Leland : — " The lorde Powis, graunt- 
father that is now, being in a controversy for 
asawte made upon hym goying to London by the 
lord Dudeley, Dudeley castelle condesended 
by entreaty, that his son and heir should mary 
the olde lorde of Dudleis' daughter." A very 
amiable method of atoning for personal violence. 
The feudal lord had absolute power over his 
own family, as well as over his dependents, the 
law r s of household government being entirely of 



LAW UNDER THE FEUDAL SYSTK.M. 65 

his own devising and prompted by his passion, his 
isrnorance, and his wickedness. Robert de 
Belesme, Earl of Shropshire and of Arundel and 
Shrewsbury, one of the most powerful and defiant 
barons of Norman times, tore out the eyes of his 
own children when they had, in sport, hidden 
their faces beneath his cloak. He cast his wife 
in a dungeon, heavily fettered ; but every night 
he sent his servants to drag her to his bed, and in 
the morning sent her back to her prison. This 
torture he inflicted upon her to gain money from 
her family. He disdained to allow his captives in 
war to be ransomed, but impaled them, men and 
women, upon stakes. His friends were terrified 
to approach him, for by way of pleasantry he 
would engage them in merry chat and suddenly 
plunge his sword into their sides with a loud 
laugh. No law could touch this man, and no 
avenger arose to overcome him. The Warden of 
the Welsh and English Marches made also his own 
laws, which were conceived in a spirit of the 
utmost cruelty. Border foragers, for example, 
were cast into a dungeon, and subjected to the 
punishment of having their right hands chopped 
off with the axe. This prescribed penalty was 
often aggravated by additional torture or death. 



66 LEGAL LORE. 

Feudalism was deep-rooted, so deep-rooted that 
not the enactments of all the Normans and 
Planta^enets could do more than check its 
growth and gradually ameliorate its severities. 
But while some of the old customs were 
abolished, the bulk of the laws remained based 
upon the Anglo-Saxon customs, so that as one 
writer has tersely explained, "the Land Laws 
and Game Laws are derived from the Normans, 
the Common Law from the Anglo-Saxons, and 
almost all our Statute Laws breathe the spirit of 
pre-Norman England." To this Macaulay refers 
with ill-disguised scorn in his History: — "Our 
laws and customs have never been lost in general 
irreparable ruin. With us the proceedings of the 
Middle Ages are still valid precedents, and are 
still cited on the gravest occasions by the most 
eminent statesmen. . . . Thus in our country 
the dearest interests of parties have been staked 
on the results of the researches of antiquaries." 
The historian, however, does admit that there is 
compensation for the anomalies which result from 
this polity. ' ' Other societies possess written 
constitutions more symmetrical. But no other 
society has yet succeeded in uniting revolution 
with prescription, progress with stability, the 



LAW UNDER THE FEUDAL SYSTEM. G7 

energy of youth with tin- majesty of immemorial 
antiquity." That the spirit of olden feudalism 

should sometimes be found surviving in modern 
laws is inevitable. Villenage is extinguished, and 
yet in the very character of certain classes, as 
well as in the operation of certain laws affecting 
lands and personal privileges, we see a direct 
connection between the submission of the bond- 
man in the past to his hereditary master and the 
readiness of the poor in the present to yield to 
one in higher station. What struck the philoso- 
phic Emerson most, on his visit to England, was 
that Englishmen should maintain their old 
customs, repeat the ceremonies of the eleventh 
century, and consider in so many things that 
''antiquity of usage is sanction enough/' "The 
Middle Ages," he said, "still lurk in the streets 
of London." 

The stocks and the whipping-post, which stood 
in front of every castle, were the commonest 
instruments in use for the punishment of the 
ceorl and villein who displeased their masters. 
For the ceorl, who could not quit the land on 
which he was born, or free himself from slavery, 
life was particularly hard. He could not absolve 
himself by money payments, like the rest of his 



68 LEGAL LORE. 

fellow-men, if once he gave offence ; while the 
majority could rob and murder and escape with a 
fine, the ceorl's slightest defect, real or imagined, 
was punished with merciless rigour. Tithings 
and the process of compurgation came to the 
assistance of other criminals, but the ceorl could 
appeal to none, and expect neither pity nor aid. 
Such facts give point to Emerson's dictum that 
" Castles are proud things, but 'tis safest to be 
outside them." The villein was in a much 
happier state than the ceorl. He was free 
against everybody except his lord, and the 
criminal code accorded him the same privileges 
as a free man. The lord was even liable to 
punishment for killing or mutilating his villein, 
and the Mirror of Justice in the thirteenth 
century laid down the fact that " the villein is no 
serf in any sense of the word ; he is a free man ; 
his land is a free tenure." But all this is largely 
comparative, and our estimate of the advantages 
enjoyed by the villein must depend upon whether 
we view it by the standards of the time, or by 
modern standards. At all events, while the 
ceorl tasted all the bitterness of his serfdom, the 
adjudged felon in other stations was able to 
obtain much leniency. The common form of 



LAW UNDER THE FEUDAL SYSTEM. 69 

oath or abjuration in King Edward's time was 
this: "This heare, thou Sir Coroner, that I am 
a robber and a murderer, and a fellow of* our 

Lord the King of England ; and because I have 
done many such evils in his lande I do abjure the 
lande of our Lord Edward, and I shall haste me 

towards the port of , which thou hast 

given me, and that I shall not goe out of the 
highway, and if I doe, I will that T be taken as 
a robber and a felon. And that at such a place 
I will diligentlie seeke for passage, and I will 
tarrie there but one ebbe and flood, if I can have 
passage ; and unlesse I can have it in such a 
place I will goe every day into the sea up to my 
knees, assaying to pass over ; and unlesse I can 
do this within fortie days I will put myselfe 
again into the Church as a robber and a felon, so 
God me helpe and his holy judgment." But 
King Richard showed no disposition to put so 
much trust in the honour of these gentry, and 
when setting out for Palestine, he made a law 
against peculating sailors, which was calculated to 
dismay them: "Whosoever is convicted of theft 
shall have his head shaved, melted pitch poured 
upon it, and the feathers from a pillow shaken 
over it, that he may be known ; and shall be put 



70 LEGAL LORE. 

on shore on the first land which the ship touches." 
This punishment reminds us of a modern 
American institution. 

The law of "Englishry" deserves a passing 
note. It dates back to the time of Canute, and 
was continued by the Normans. When Canute 
sent away the greater portion of his Danish 
troops, " the Witan pledged themselves that the 
rest should be safe in life and limb, and that any 
Englishman who killed any of them should suffer 
punishment. If the murderer could not be dis- 
covered, the township or hundred was fined." 
The proud and tyrannical Normans used this law 
to their own advantage. A mere Englishman 
being a vassal, and of no importance, could be 
killed with impunity, but it was ordained that 
when a man was found killed, and evidence was 
not brought to prove that he was English, he 
should be held to be a Frenchman, so that a 
penalty could be imposed upon the township. 
This law of " Englishry " is often illustrated in 
old chronicles. Men were found murdered by 
the roadside, on heaths, and in woods ; the 
chronicles state that "no Englishry was proved," 
and the towns were accordingly amerced. The 
' ' Frankpledge " was not so feudal in character, 



LAW UNDER THE FEUDAL SYSTEM. 71 

though it was based upon the principle that 
"every landless man shall have a lord who shall 
answer tor his appearance in the courts of law." 
The custom prevailed before the Conquest, ten 
men forming a "tithing," the members of which 
were answerable each for others. The preseni 
Court Leet is a survival of the system, though 
in a very modified form. 

The feudalism which the Norman barons im- 
posed upon Scotland, and which was unchecked 
by King William, so that it reproduced all the 
evils of the ferocious Continental system, was 
marked by terrible excesses. No institution was 
more shameful and abhorrent, or so vividly 
reveals the baseness to which unrestricted feudal- 
ism sank, than the horrible depravity of maiden- 
rights, or droits de *<'></)ieur. Beaumont and 
Fletcher founded upon the historic incidents 
their drama of "The Custom of the Country," 
and though a few mild attempts have been made 
to throw doubt upon the facts, there is no 
question that these domestic tyrannies spread 
rapidly from Scotland to France and Germany, 
and took numerous odious forms. Isaac Disraeli, 
in his " Curiosities," devotes a chapter to the 
subject, which can scarcely be dealt with in 



72 LEGAL LORE. 

detail in a work appealing to the general reader. 
The shameful institution was abolished by 
Malcolm III., who, however, put the matter 
upon a business basis by ordering that it 
should be redeemed by a quit-rent. But the 
lord still considered himself privileged to manifest 
his authority over his vassals by thrusting his 
booted leg into the bed of a newly-married 
couple, or by sousing the bridegroom in a river. 
The wardships enjoyed by the feudal lords were 
equally absurd, one of their favourite methods of 
raising money being to arrange an unsuitable 
marriage, and on the refusal of the persons to 
carry out the contract, to claim the revenue of 
the wards' estate as "forfeit." The feudal lord 
could sell his vassals as he did his animals, and 
they were often bartered away with fields and 
houses. The value of a serf was roughly apprised 
as four times that of an ox, and he could also be 
used as " live money.' 1 

Mr. Ruskin, in his third letter in " Fors 
Clavigera," gives an account of the laws pro- 
mulgated by King Richard, Cceur de Lion, 
whom he declared to be the truest representative 
of the British " Squire," under all the significances 
of that name. The ideal lord was an admixture 



LAW CTNDEB THE FEUDAL SYSTEM. 73 

of the patriarch and the tyrant, and if we 
examine Richard's legislation, and endeavour to 
recognise the objects he had in view, we see thai 
with a considerable amount of selfishness he also 
possessed a real wish to add to the welfare of his 
people. He simplified and adjusted the weights 
and measures of the country to put an end to 
cheating, and he took severe measures "to prevent 
the extortions of the Jews." If the people 
would be honest, he was quite willing to do the 
fighting for them ; if they made good cloth, he 
was ready to see that they got good pay ; and 
when they bought and sold, he was determined 
that each should give the other good measure. 
But with much power comes caprice, and the 
feudal lords too soon forgot the interests of their 
dependents in serving their own ends. The 
English barons never made the formal claim of 
the German barons to rob on the highways in 
their own territories, though, without asserting 
the right, they frequently performed the act. A 
case in point is that of William de Birmingham, 
who so late as the sixteenth century went out 
with a hundred men to molest and rob travellers 
on foot. The ordinary laws were unequal to 
calling them to account for these misdeeds : 



74 LEGAL LORE. 

nothing but conquest by battle could have 
checked them. Besides, there were Lord 
Palatines whose rule in their own domains was 
equal to that of the sovereigns, and they could 
make or abrogate laws at will. These kings in 
petto appointed their own judges and courts, 
could reverse sentences, pardon at will for any 
crime, and indict at pleasure. Offences com- 
mitted in the County Palatine were said to be 
" against the peace " of the lord, and not against 
the peace of the king, and it was with a rod of 
iron that these despots governed the territory 
allotted to them. Still there was a show of 
legality in this. It differed from the wanton 
caprice of Geoffrey of Coventry, who oppressed 
the inhabitants, was amenable to no law for so 
doing, but consented to remit the burdensome 
taxes if his wife would ride naked through the 
streets. As a specimen of the barbarous humour 
of these lords, the Godiva story is instructive. 

At the end of King Stephen's troublous reign, 
there were eleven hundred and fifteen castles in 
England, each of them a centre of power, at that 
particular time almost absolute. The wise pro- 
visions of the Conqueror had to some extent 
been overcome, and the feudal lords had become 



LAW UNDER THE FEUDAL SYSTEM. 75 

so unmanageable that Henry II. found himself 
compelled to stipulate for the destruction of a 
number of the strongholds. At the same time 
he prevented the erection of others except by 
royal licence, and so began to limit the oppression 
which had prevailed. We find, too, that in con- 
sequence of the frequent over-riding of the 
common law by men in authority, the monarch 
reserved to himself more and more of sovereign 
power, " by which," says Sir Robert Filmer in 
his famous ' ' Patriarcha " — answered by John 
Locke in the still more famous treatises on Civil 
Government — " he did supply the want or correct 
the rigour of the common law, because the 
positive law, being grounded upon that which 
happens for the most part, cannot forsee every 
particular which time and experience bring forth. 
Already sundry things do fall out," he continues 
later, "both in war and peace, that require extra- 
ordinary help ... so that rare matters do 
grow up meet to be referred to the absolute 
authority of the prince." We find such a case in 
the time of Richard II., when, on a question of 
freehold, the appeal went direct to the king because 
"of maintenance, oppression, or other outrages 
the common law cannot have duly her course." 



76 LEGAL LORE. 

How the lords could avoid and defy the 
common law is proved by two curious instances 
in the history of the Dudleys, the family pre- 
viously referred to. Lord Edward Dudley, in 
1592, had a dispute with the neighbouring 
Lyttelton family, and raising some 150 persons, 
he went one night and stole all the cattle on the 
latter's estate. Lyttelton obtained judgment 
against Dudley, who was ordered to return the 
cattle, but he posted his servants at the gates, 
and bade them cut the bailiffs to pieces. Lyttel- 
ton then armed sixty men and took the cattle 
back by force ; Dudley armed 700 men to fetch 
them back and kill them. For this offence the 
nobleman and eighty followers were indicted, but 
by one means and another the proceedings were 
made to last four years, and then an agreement 
was entered into by the parties. Lord Edward's 
son, Ferdinando, was the hero of the next exploit. 
He purchased the property of an oppressed 
widow, named Martha Grovenor, for £1200, but 
only paid £100. She sued him in the Exchequer 
for the remainder, and obtained judgment for the 
balance. No notice was taken of this. The 
following year the widow obtained a second 
decree, and this again was ignored. His lordship 



LAW UNDKI! TIIK KKTDAL SYSTK.M. 77 

was next called upon for costs, and this led him 

to make an effort to compromise the matter. He 
entered into an agreement to pay all arrears and 
costs, but, having done so much, refused to fulfil 
his obligations. An execution of ejectment was 
then levied against his lordship. This he 
avoided for nine years, and it was only twelve 
years after negotiations had begun that the 
widow was able to obtain her dues. 

A very brief glance at Continental feudalism 
and its influence upon statute law may now be 
given. It enables us to mark some of the 
differences between the English and the foreign 
systems, the one with its restrictions and the 
other all-powerful. In the eleventh century, all 
Fiance and the German Empire were one vast 
feudal possession. The powers of the lords have 
been classed by the historian Hallam as follows — 
First, the right of coining money ; second, that 
of waging private war ; third, exemption from all 
public tributes except the feudal aids ; fourth, 
freedom from legislative control ; and fifth, the 
exclusive exercise of original judicature in their 
dominions. It is easy to perceive how, with 
these initial powers conceded, the seigneurs were 
enabled to make themselves the veritable masters 



78 LEGAL LORE. 

of the kingdom. In Germany the lawlessness of 
the barons became as proverbial as did their 
cruelty towards their slaves. The whole country 
was divided up into territories over which the 
feudal chiefs reigned as absolute and despotic 
kings. Nor is the spirit of feudalism in that 
country yet extinct, for, unlike France, it has not 
had its bloody revolt against " aristocrats." No 
one can have travelled in Germany and seen the 
castle towering high on crag or rock, and the 
diminutive houses scattered about its base, with- 
out realising at a glance how the chieftains and 
their serfs lived in the old days. In Germany 
the feudal system was seen at its strongest and 
its worst, and law was paralysed while the men 
of lust and blood were supreme in their own 
dominions. Austria has a similar story to tell of 
barbarity towards serfs, and the abrogation of 
law by powerful chieftains. But it is remarkable 
that in Russia, where the feudal spirit still most 
strongly survives, and is marked by many 
excesses utterly repugnant to the feeling and 
customs of the times, the earliest attempts to 
establish a feudal system were quelled by the 
princes. In this land, where a mistress might, 
until recently, have her maid whipped to death 



LAW UNDER THE FEUDAL SYSTEM. 79 

for dropping a teacup, or for any other trivial 
offence, real or imagined, where again it was 
taken for granted thai 

"A Count carbonadoes 
His ignorant serfs with the knout," 

feudalism, once instituted, deepened its hold with 
the progress of years. While there.' was no law 
for the lower classes, save that dictated by the 
caprice of their masters, there were special 
exemptions and priveleges for the noble and 
wealthy. The Russian lords pay no taxes, and 
they retain, in almost undiminished force, that 
power to abuse, insult, and destroy the peasantry 
which was possessed by the ancienne nohlesse of 
France before the Revolution. Mr. Morley 
Roberts, in one of his Russian historical sketches, 
relates that not lono - a^o a noble threw a Hebrew 
into a dungeon for an offence, and a week later asked 
his jager what had become of him. "Oh," said 
the fellow with a laugh, " he made so much noise 
that I shot him." 

The state of Bohemia from the ninth to the 
fourteenth century shows to what deplorable 
depths a race may sink under an unrestrained and 
licentious feudalism. The Bohemian nobles 
practically abolished the marriage laws, and in 



80 LEGAL LORE. 

addition to oppressing their dependents, fre- 
quently sold them into slavery. When St. 
Adalbert endeavoured to effect a reformation, he 
found every impediment put in his way, and his 
wishes openty defied. He had a horror of blood- 
shed, and preached the hatefulness of murder. 
By way of response, a man, whose wife had been 
put in a nunnery to save her from his brutality, 
was draowd out and butchered in the streets. 
Adalbert had to wait long before he could 
influence these men who, secure in their castles, 
could indulge their rapacity without fear of 
punishment. Reforms, effected in the tenth 
century, however, were not permanent, and in 
the twelfth century the nobles had succeeded in 
converting the local assembly, with its power of 
appointing judges, to their own uses. Mr. 
Edmund Maurice, in his history of Bohemia, 
relates that the nobles began to secure the 
judgeships for themselves, and then sold or 
bequeathed the offices to heirs. They thus made 
the appointments a means of tyranny and a 
source of profit, and with the money acquired 
purchased the lands of freemen. Others, owing 
to the unpopularity of the local tribunals, 
strengthened the power of their own feudal 



LAW UNDER THE FEUDAL SYSTEM. Bl 

courts, and again reduced their dependents to 
abject slavery. 

"The coolness," says Mr. Maurice, "with 
which many of the giants of land transferred 
workmen of various kinds as mere appendages 
of fields and fishponds, is in itself a proof of 
the degraded position to which the peasant 
class had been reduced ; and the fact that 
military service seemed one of the few means of 
escaping from serfdom, led the peasants to favour 
those wars which in the end increased their 
misery." Eventually King Wenceslas, famed in 
ballad, and still more famed in Bohemian history, 
came to the rescue, and ordained " that no baron 
or noble of the land shall have power in 
the city of Briinn, or shall do any violence 
in it, or shall detain anyone, without the 
license and proclamation of the judge of the 
city." 

The wide survey we have taken enables a fair 

estimate to be made of the state of the law in 

Europe when the castle was the court of justice, 

and the baron was the judge. England alone 

of all Europeon countries seems to have been 

able to place a check upon the more flagrant 

abuses, and in later times of reform to have 

G 



82 LEGAL LORE 

succeeded, while abolishing what was essentially 
evil in the system, in retaining whatever of 
it was of worth. Whether there be still laws 
too deeply impressed with feudal ideas for 
modern acceptance is a question for legislators 
to consider. 



Gbc fIDanor an& flbanor law. 

By England Howlett. 

EVERYTHING relating to the manor 
reminds us forcibly of the baron of olden 
days, with his little territory, in which he was 
practically a king. Estates in copyhold are 
essentially distinct both in their origin and in 
their nature from those of freehold estates. 
Copyhold lands are holden by copy of court roll, 
that is to say, the muniments of the title to such 
lands are copies of the roll or book in which an 
account is kept of the proceedings in the court of 
the manor to which the lands belong. For it 
must be remembered that all copyhold lands 
belong to and are parcel of some manor. An 
estate in copyhold is not a freehold ; but, accord- 
ing to construction of law, merely an estate 
at the will of the lord of the manor, at whose will 
copyhold estates are expressed to be holden. 
Copyholds are also said to be holden according (>> 
the custom of the manor to which they belong, 



84 LEGAL LORE. 

for custom is of course the life and being of copy- 
holds. 

We must remember that in former days, a 
baron, or great lord, becoming possessed of a 
large tract of land, granted part of it to freemen 
for estates in fee simple. Part of the land he 
reserved to himself, and this formed the demesnes 
of the manor, properly so called : other parts of 
the land he granted out to his villeins, or slaves, 
permitting them, as an act of pure grace and 
favour, to enjoy such lands at his pleasure ; but 
sometimes enjoining, in return for such favour, 
the performance of certain agricultural services, 
such, for instance, as ploughing the demesne, 
carting the manure, and other such servile work. 
The lands remaining after this parcelling out, 
generally the poorest, formed the waste lands of 
the manor, over which rights of commons were 
enjoyed by the tenants. In this way arose a 
manor, of which it will be seen the tenants formed 
two classes, the freeholders and the villeins. 
Now for each of these classes a separate court 
was held — for the freeholders a Court Baron ; 
for the villeins another called a Customary Court. 
In the former court the suitors were the judges ; 
in the latter the lord only, or his steward. 



THE .MANui; AND .MA. No I: LAW. 

In some manors the villeins were allowed to 
have life interests, but these grants were qo1 

extended so as to admit any of their children. 
Hence arose copyholds for life. Again, in other 
manors a much greater degree of liberality was 
shown by the lords ; and on the death of a 
tenant, the lord permitted his eldest son, or 
indeed sometimes all his sons, or sometimes the 
youngest only, and afterwards other relations 
to succeed him by way of heirship ; for which 
privilege, however, the payment of a fine was 
usually required on the admittance of the heir to 
the tenancy. Frequently it happened that the 
course of descent of estates of freehold was chosen 
as the model for such inheritances ; but in many 
cases dispositions of the most capricious kind 
were adopted by the lord of the manor, and in 
course of time actually became the custom of 
the manor. And thus it was that copyholds of 
inheritance arose. Again, if a villein tenant 
wished to part with his own parcel of land to 
some other of his fellows, the lord would allow 
him to surrender or yield up again the land, and 
then, on the payment of a fine, would indulgently 
admit as his tenant, on the same terms, the 
other, to whose use and in whose favour the 



SQ LEGAL LORE. 

surrender had been made. Thus arose the 
method now prevalent at the present day, of 
conveying copyholds by surrender into the hands of 
the lord of the manor to the use of the purchaser, 
and the subsequent admittance of the latter. By 
long custom and continued indulgence that which 
at first was a pure favour gradually grew up into 
a right, and thus it came to pass that the will of 
the lord, which had of course originated the 
custom, came at last to be controlled by it. # 

The rise of the copyholder from a state of 
uncertainty to certainty of tenure appears to 
have been very gradual. Britton, who wrote in 
the reign of Edward I., thus describes this tenure 
under the name of Villeinage. " Villeinage is to 
hold part of the demesnes of any lord entrusted 
to hold at his will by villein services to improve 
for the advantage of the lord." And he further 
adds that " In manors of ancient demesne there 
were pure villeins of blood and of tenure, who 
might be ousted of their tenements at the will 
of their lord." 

In the reign of Edward III. a case occured in 
which the entry of a lord on his copyholder was 
adjudged lawful, because he did not do his services, 

* Williams' " Real Property Law." 



THE MANOR AND MANOR LAW 87 

by which he broke the custom of the manor, 
which seems to show that even at thai tunc tin- 
lord could not have ejected his truant without a 
cause. And later, in the reign of Edward IV., 
the judges gave to copyholders a certainty of 
tenure by allowing them an action of trespass od 
ejectment by their Lords without just cause. 
"Now," says Sir Edward Coke, "copyholders 
stand upon a sure ground ; now they weigh not 
their lord's displeasure ; they shake not at every 
sudden blast of wind ; they eat, drink, and sleep 
securely ; only having a special care of the main 
chance, namely, to perform carefully what duties 
and services soever their tenure doth exact and 
custom doth require ; then let lord frown, the 
copyholder cares not, knowing himself safe." 

In the present day a copyholder has as good a 
title as a freeholder ; in some respects a better ; 
for all the transactions relating to the conveyance 
of copyholds are entered on the court rolls of the 
manor, and thus a record is preserved of the title 
of all the tenants. 

Since the passing of the statute of Quia 
Emptorcx, IS Edward T.. it has not been lawful 
to create a tenure of an estate in fee simple ; so 
that every manor bears date at least as far back 



88 LEGAL LORE. 

as that reign ; to this rule the few seignories, 
which may have been subsequently created by 
the king's tenants in capite, form the only 
exception. 

The name " manor " is of Norman origin, but 
the estate to which it was given existed, in its 
essential character, long before the Conquest ; it 
received a new name as the shire also did, but 
neither the one nor the other was created by this 
change. The local jurisdiction of the thegns 
who had grants of sac and soc, or who exercised 
judicial functions amongst their free neighbours, 
were identical with the manorial jurisdictions 
of the new owners. 

Although long continued custom has now 
rendered copyholders quite independent of the 
will of the lords, yet all copyholds, properly so 
called, are still expressly stated, in the court rolls 
of manors, to be holden at the will of the lord ; 
and, more than this, estates in copyholds are 
still liable to some of the incidents of mere 
estates at will. 

In ancient times the law laid great stress on 
the feudal possession or seisin of lands, and this 
possession could only be had by the holder of an 
estate of freehold, that is, an estate sufficiently 



THE MANOB AND MANOR LAW. 89 

important to belong to a free man. Now, as we 
have seen, copyholders in ancieni times belonged 

to the class of villeins or bondsmen, and held, at 
the will of the lord, lands of which the lord 
himself was alone feudally possessed. The lands 
held by the copyholders still remained part and 
parcel of the lord's manor ; and the freehold of 
these lands still continued vested in the lord ; and 
this is the case at the present day with regard to 
all copyholds. The lord of the manor is actually 
seised of all the lands in the possession of his 
copyhold tenants. 

The lord, having the legal fee simple in the 
copyhold lands comprised in his manor, possesses 
all the rights incident to such an estate, controlled 
only by the custom of the manor, which is now 
the tenant's safeguard. Thus he possesses a right 
to all the mines and minerals under the land, and 
also to all timber growing on the surface, and this 
even though the timber may have been planted 
by the tenant. However, it must be borne in 
mind that these rights are somewhat interfered 
with by the rights which long continued custom 
has given to the tenants, for the lord cannot come 
upon the lands to open his mines, or to cut his 
timber, without the copyholder's leave. 



90 LEGAL LOKE. 

A copyholder cannot commit any waste, either 
voluntary, by opening mines, cutting down timber 
or pulling down buildings ; or permissive, by 
neglecting to repair. For the land, with all that 
is under it or upon it, belongs to the lord of the 
manor ; the tenant has nothing but a customary 
right to enjoy the occupation ; and if he should 
in any way exceed this right, a cause of forfeiture 
to his lord would at once accrue. # 

By the customs of manors, on every change of 
tenancy, whether by death, sale, or otherwise, 
fines of more or less amount become payable to 
the lord. By the customs of some manors the 
fine payable was anciently arbitrary ; but now in 
modern times, fines, even when arbitrary by 
custom, are restrained to two years' improved 
value of the land after deducting quit rents. 

In some manors a fine is due on the change of 
the lord ; but in this case the change must always 
be by act of God, and not by any act of the 
party. 

The tenure of an estate in copyholds involves 
an oath of fealty from the tenant, and together 
also with suit to the customary court of the 
manor. Another incident of the tenure, and this 

* Williams' "Real Property Law." 



THE MAN'Ol! AND MANOR LAW. 9] 

Bometimes a very profitable one, is the escheal to 
t he lord on failure of heirs. 

Before the abolition of forfeiture for treason 

and felony, the lord of a copyholder had a greal 
advantage over the lord of a freeholder in this 
respeet, that, whilst freehold lands in fee simple 
were forfeited to the crown by the treason of the 
tenant, the copyholds of a traitor escheated to 
the lord of the manor of which they were held. 

One of the most curious incidents of the tenure 
is the right of the lord, on the death of a tenant, 
to seize the tenant's best beast, horse, or other 
chattel under the name of a heriot. Now 7 it 
would appear that heriots were introduced into 
England by the Danes. The heriot of a military 
tenant was his arms and habiliments of war, 
which belonged to the lord for the purpose of 
equipping his successor. And it would seem 
that in analogy to this purely feudal custom, the 
lords of manors usually expected that the best 
beast or other chattel of each tenant, whether he 
were a freeman or a villein, should on his death 
be left to them. In old wills of copyholders we 
constantly find this legacy to the lord of the 
manor the first bequest mentioned : in fact the 
tenant really making a bounty of what was 



92 LEGAL LORE. 

actually an obligation. In cases where the tenant 
died intestate the heriot of the lord was taken in 
the first place out of his effects, unless indeed the 
lord seized the whole of the goods, which not 
unfrequently happened in days before custom had 
so completely controlled the rights of the lord, 
and at the same time protected the interests of 
the tenant. Heriots survive to this day in many 
manors, a true badge of the ancient servility of 
the tenure. Now, however, the right of the lord 
is confined to such a chattel as the custom of the 
manor, grown into a law, will permit him to take ; 
and in most cases the heriot consists not of a 
chattel at all, but merely of a money payment. 

The mode in which copyhold land is transferred 
from one person to another still retains much of 
the primitive simplicity of bygone ages. The 
copyholder personally surrenders the lands into 
the hands of the lord, generally through his 
steward, and this surrender is evidenced by the 
delivery of some article varying according to the 
custom of the particular manor : in some manors 
the surrender is effected by the delivery of a rod, 
in others of a straw, and ao-ain in others bv a 
glove. The surrender having been duly effected, 
the purchaser is admitted, and the various 



THE MANOR AND MANOK LAW. 93 

documents used are all entered upon the court 
rolls of the manor. The steward is the person 

who makes the entries on the court rolls, and 
they are kept in his custody, but subject however 
to the right of the tenants to inspect them. The 
steward also usually presides at the copyhold 
courts of the manor. 

A special custom is required to entitle the wife 
of a copyholder to any interest in her husband's 
lands on his death intestate. Where such a 
custom does exist the wife's interest is termed 
her freebench, and it consists generally of a life 
interest in one-third part of the lands of which 
the husband died possessed. Freebench in most 
manors differs from the ancient right of dower in 
this most important particular, that whilst the 
widow could claim her dower out of all the 
freehold lands which her husband actully possessed 
at any time during the marriage, the right to 
freebench does not in general attach until the 
actual death of the husband, and of course may 
be defeated by a devise of lands by the husband's 
will. From this it will be seen that freebench is 
no impediment to free alienation by the husband 
of his copyholds without an} 7 consent on the pail 
of his wife. To this general rule, however, the 



94 LEGAL LORE. 

manor of Cheltenham forms an important excep- 
tion ; for by the custom of this manor the 
widow's freebench attaches in the same way as 
the ancient right of dower did on all the land of 
copyhold tenure, of which the husband at any 
time during the marriage had been possessed. 

Centuries have robbed the manor of much of 
its importance ; most of the honour and prestige 
has decayed which once surrounded the lord, his 
power has become controlled by long continued 
custom, so that the copyhold tenants are prac- 
tically independent of him, and have as good a 
title to their lands as freeholders. Little remains 
beyond the most prominent of the old formalities, 
which at one time gave dignity and importance 
to the lord of the manor and his court. Most of 
the dealings with copyhold land are now effected 
out of court, and although the courts are still 
held at the customary periods, they are for the 
most part an empty formality, their glamour 
gone, yet still possessing an especial interest of 
their own as evidence of the surviving of ancient 
customs, which have practically remained un- 
changed through the roll of centuries. 



Hncient tenures. 

By England Howlett. 

PRACTICALLY all the landed property in 
England is, by the policy of our laws, 
supposed to be granted by, dependent upon, and 
holden of some superior lord, in consideration of 
certain services to be rendered to such lord by the 
possessor of this property, and the terms or 
manner of their possession is therefore called a 
tenure. Thus all the land in the kingdom is 
supposed to be held, mediately or immediately, 
of the sovereign who is consequently styled the 
lord or lady paramount. 

All tenures being thus derived, or supposed to 
be derived, from the sovereign, those who held 
directly under such sovereign, and in right of the 
crown and dignity, were called tenants in capit<\ 
or in chief, which was the most honourable species 
of tenure, although at the same time it subjected 
the tenants to far greater and more burthensome 
services than the inferior tenures did, and this 
distinction ran through all the different sorts of 



96 LEGAL LORE. 

tenure. William I., and other feudal sovereigns, 
although they made large and numerous grants 
of land, always reserved a rent or certain annual 
payments, which were collected by the sheriffs of 
the counties in which the lands lay, to show that 
they still retained the dominium directum in 
themselves. 

With our ancestors the most honourable and 
hio-hly esteemed species of tenure was that by 
knight service, and this was purely and entirely a 
military tenure, being, in fact, the result of the 
feudal establishment in England. Now to make 
a tenure by knight service, a determinate quantity 
of land was necessary, which was called a knight's 
fee, feodum militare ; the measure of which in 3 
Edward I., was estimated at twelve ploughlands, 
and its value (although it varied with the times) 
in the reigns of Edward I. and Edward II. was 
stated at £20 per annum. The knight who held 
this proportion of land was bound to attend his 
lord to the wars for forty days in every year, if 
called upon so to do, which attendance was his 
rent or service for the land he claimed to hold. 
If, however, he held only half a knight's fee, he 
was only bound to attend his lord twenty days, 
and so on in proportion. This tenure of knight 



A.NCIENT TENURES. 97 

Bervice drew with it several consequences as 
inseparably incident to the tenure in chivalry, and 
one oft lie most profitable, and, at the same time, 
arbitrary of these was marriage. This incident 
called marriage was the right which the lord 
possessed of disposing of his infant wards in 
matrimony, at their peril of forfeiting to him, in 
ease of their refusing a suitable match, a sum of 
money equal to the value of the marriage; that 
is, what the suitor was willing to pay down to the 
lord as the price of marrying his ward ; and 
double the market value was to be forfeited, if the 
ward presumed to marry without the consent of 
the lord. 

The personal attendance rendered necessary by 
knight service growing troublesome and incon- 
venient in many respects, the tenants found means 
of compounding for it; first, by sending others in 
their stead, and then in process of time making a 
pecuniary satisfaction to the lord in lieu of it. 
This pecuniary satisfaction at last came to be 
levied by assessments at so much for every knight's 
fee ; the first time this appears to have been done 
was in 5 Henry II., on account of his expedition 
to Toulouse ; but it soon became so universal thai 
personal attendance fell quite into disuse. From 



98 LEGAL LORE. 

this period we find, from our ancient histories, 
that when the kings went to war, they levied 
scutages on their tenants, that is, on all 
the landowners of the Kingdom, to defray 
their expenses, and to pay for the hire of 
troops. 

These assessments, in the time of Henry II., 
seem to have been made in a most arbitrary 
manner, and entirely at the king's will and 
pleasure. The prerogative became, indeed, abused 
to such an extent, that at last it became a matter 
of national clamour, and King John was obliged 
to consent by his Magna Carta, that no scutage 
should be imposed without the consent of Parlia- 
ment. But this clause was omitted in the Charter 
of Henry III., where we only find that scutages, 
or escuage, should be taken as they were used 
to be taken in the time of Henry II. ; that is, in 
a reasonable and moderate manner. Yet after- 
wards, by statute 25 Edward I., and many sub- 
sequent statutes, it was again provided, that the 
king should take no aids or tasks but by the 
common assent of the realm ; hence it was held 
that scutage, or escuage, could not be levied 
except with the consent of Parliament ; such 
scutages being indeed the groundwork of all 



ANCIENT TENURES. 99 

succeeding subsidies, and the land tax (if later 
t lines. 

It will easily be Been that with the degenerating 
of knight service, or personal military duty into a 
pecuniary assessment, all the advantages were 
destroyed, and nothing in fact remained but the 
hardships. Instead of having a national militia, 
composed of barons, knights, and gentlemen, 
bound by their interests and their honour to 
defend the king and country, the whole system of 
military tenures tended to nothing else but a 
wretched means of raising money to pay an army 
of occasional mercenaries. At length the military 
tenures, with all their heavy appendages were 
destroyed at one blow by statute, 12 Charles II., 
C. 24, which enacts "that the courts of wards 
and liveries, and all wardships, liveries, primer 
seisins, and ousterlemains, values and forfeitures 
of marriage, by reason of any tenure of the king 
or others, be totally taken away. And that all 
fines for alienation, tenures by homage, knight 
service, and escuage, and also aids for marrying 
the daughter, or knighting the son, and all tenures 
of the king in capite, be likewise taken away. 
And that all sorts of tenures, held of the king or 
others, be turned into free and common socage; 



100 LEGAL LORE. 

save only tenures in frank almoign, copyholds, 
and the honorary services of grand serjeanty." 

Another ancient tenure was that by Grand 
Serjeanty, whereby the tenant was bound, instead 
of serving the king generally in the wars, to do 
some special honorary service for the king in 
person ; as to carry his banner, his sword, or the 
like ; or to be his butler, champion, or other 
officer at his coronation. Tenure by cornage was 
a species of grand serjeanty, being a grant of 
land upon condition that the tenant was to wind 
a horn when the Scots or other enemies entered 
the land, in order to warn the king's subjects. 

The tenure of petit serjeanty bears a great 
resemblance to the tenure of grand serjeanty ; for 
as the one is a personal service, so the other is a 
rent or render, both tending to some purpose 
relative to the king's person. Petit serjeanty 
as defined by Littleton, consists in holding lands 
of the king, by service of rendering to him 
annually some small implement of war, as a bow, 
a sword, a lance, an arrow, or the like. This, of 
course, is but socage in effect, for it is no personal 
service, but a certain rent. The tenure by which 
the grants to the Duke of Marlborough and the 
Duke of Wellington, for their great military 



A.NCIENT TENURES. 101 

services to the counl ry, arc held, are of this kind, 
each rendering a small flag or ensign annually, 
which is deposited in Windsor Castle. Bury 
House (New Forest), the property of Sir Charles 
Mill, Bart., is held by the. tenure of presenting 
the king whenever he enters the New Forest with 
a brace of milk-white greyhounds. A breed of 
these dogs is preserved by the family in readiness. 
King George III. received dogs in recognition of 
this tenure in 1789, and the incident is the sub- 
ject of one of Lawrence's pictures. 

In Beckwith's edition of Blount's " Fragmenta 
Antiquitatis," the following tenure is inserted 
from the "Black Book of Hereford."— " The 
tenants at Hampton Bishop, in the county of 
Hereford, were to get yearly six horse loads of 
rods or wattels, in the Hay Wood, near Hereford, 
and bring them to Hereford to make booths (or 
hurdles to pen sheep in) at the fair when they 
should be required ; and for every load of the 
said rods they were to be allowed a halfpenny at 
the fairs." 

This tenure would appear to relate to one 
particular fair only, and not to all the fairs 
formerly held at Hereford. The particular fair 
is supposed to have been the one beginning on 



102 LEGAL LORE. 

May 19th, and commonly called the nine-days' 
fair, from the circumstance of its continuing for 
that length of time. From time immemorial 
this fair was proclaimed, with certain formalities, 
by the Bishop of Hereford's bailiff, or his deputy, 
the tolls of the fair belonging to one or both of 
these officers. During the continuance of the 
fair, the Bishop's bailiff superseded the Mayor 
of Hereford as acting magistrate, the fair 
being held in a street opposite the Bishop's 
palace. 

Brienston, in Dorsetshire, was held in grand 
serjeanty by a curious jocular tenure, viz. : — by 
finding a man to go before the king's army for 
forty days when he should make war in Scotland 
(some records say in Wales) bareheaded and bare- 
footed, in his shirt, and linen drawers, holding in 
one hand a bow, and in the other an arrow 
without feathers.* 

The Dukes of Athol hold the Blair Athol 
estate by the tenure of presenting a white rose 
to the sovereign whenever he visits them there. 

Land was frequently held by the tenure of 
protecting the church property in times of war. 
Scott tells us how the Bishop of Durham gave 

* Southey's Common Place Book, 4th Series, 1851, p. 175. 



AN (.'IK NT TKNI'ltKS. 103 

Lands to the Danish Count, Witikind, to be held 
by this tenure. The story is not true, but the 
tenure is ; 

Broad lands be gave him on Tyne and Wear, 
To be beld of the Church by bridle and spear; 
Pari of Monkwearmouth, of Tynedale part, 

To better his will and soften his heart. 

Harold the Dauntless. 
Canto i., IV. 

The tenure of ancient demesne exists in those 
manors, and in those only, which belonged to the 
crown in the reigns of Edward the Confessor and 
William the Conqueror, and in Domesday Book 
are called Terrce Regis Edwardi. The tenants are 
freeholders and possessed certain privileges, the 
chief of which was a right to sue and be sued 
only in their lord's court. 

Another kind of ancient tenure, still subsisting, 
is the tenure of frankalmoign, or free alms, and 
this is the tenure by which the lands of the church 
are for the most part held. This tenure is 
expressly excepted from the statute, 12 Charles 
II., by which the other ancient tenures were 
destroyed. It has no peculiar incidents, the 
tenants not being bound even fco do fealty to the 
lords, because, as Littleton says, the prayers and 



104 LEGAL LORE. 

other divine services of the tenants are better for 
the lords than any doing of fealty. As the church 
is a body having perpetual existence, there is, 
moreover, no chance of any escheat. By this 
tenure almost all the monasteries and religious 
houses held their lands. It was an old Saxon 
tenure ; and continued under the Norman revolu- 
tion, through the great respect that was shewn 
to religion and religious men in ancient times. 
This too, no doubt, is the reason that tenants in 
frankalmoign were discharged from all other 
services except the repairing of highways, 
building castles, and repelling invasions ; just in 
fact as the Druids, among the Ancient Britons, 
had similar privileges. The tenure being purely 
spiritual, the lord had no remedy for neglect by 
distress or otherwise, but merely a complaint to 
the ordinary to correct it. 

One of the most interesting tenures is that of 
Borough English. There are a great number 
of manors throughout the country in which this 
tenure prevails ; they are not however confined 
to one county or one district. Borough English 
is the right of succession of the youngest son, 
instead of the eldest, to real estate in case of 
intestacy, but the custom is not always the same ; 



A N('l K. \T TENURES. L05 

it differs in differeni manors. In some it is 
confined fco fche sons only, and if there should be 
no bod fche estate is shared equally amongsl all 
the daughters. In other manors, principally 
Sussex, the youngest daughter inherits. Again, 
there ate cases to be found where if there he no 
children, the youngest brother inherits, and in 
others it goes according to the rules of the 
common law. There are, moreover, places in 
which the copyhold land only is Borough English, 
while the freehold is held by the ordinary tenure, 
and in others the freehold and copyhold alike 
follow the Borough English custom. 

The area over which this Borough English 
tenure prevails is an exceedingly wide one. It is 
found in nearly every part of Europe, except 
perhaps Italy and Spain — in Germany, Hungary, 
the Ural mountains, and in Asia as far as the 
borders of China. Man} T attempts have been 
made to explain the custom. Littleton suggests 
that the youngest son, by reason of his tender 
age, is not so capable as the rest of his brethren 
to help himself. It is possible the origin may 
have come to us from the Tartars, amongst whom 
this custom of descent to the youngest son also 
prevails. That nation is composed almost 



106 LEGAL LORE. 

entirely of shepherds and herdsmen, and the 
elder sons, as soon as they are capable of leading 
a pastoral life, migrate from their father with a 
certain allotment of cattle, and go to seek a new 
habitation. And thus we find that, among many 
other northern nations, it was the custom for all 
the sons, but one, to migrate from the father, 
which one became his heir. 

The tenure of Gavelkind prevails principally in 
the County of Kent. It is universally known 
what struggles the Kentish men made to preserve 
their ancient liberties, and with how much success 
those struggles were attended. It seems fair 
therefore, to conclude that this custom was a 
part of those liberties, agreeably to the general 
opinion, that Gavelkind, before the Norman 
Conquest, was the general custom of the realm. 
The distinguishing properties of this tenure are 
various ; some of the principal are these : 1. The 
tenant is of age sufficient to alienate his estate by 
feoffment at the age of fifteen. 2. There never 
was any escheat in case of an attainder and 
execution for felony ; their maxim being " the 
father to the bough, the son to the plough." 
3. In most places, the tenant had the power of 
devising his lands by will, before the statute for 



ANCIENT TENURES. L07 

that purpose was made. 4. The lands descend 
not to the eldest, youngest, or any one- son only, 
but to all the sons together. This last incident 
is, of course, the most important affecting the 
tenure, and not only this, l>ut also the most 
interesting, in that, like Borough English, it 
prevails to the present day. True it is that 
certain lands in Kent, once Gavelkind, have been 
made descendable according to the rules of the 
common law, by special statutes ; however, these 
statutes only affect a very small portion of the 
county. 

Gavelkind and Borough English, being customs 
already acknowledged by the law, need not be 
specially pleaded ; it is sufficient to show that 
the lands are affected and regulated by the 
same ; but all other private customs must be 
pleaded. 

The ancient Barons of Buccleuch, both from 
feudal splendour and from their frontier situation, 
retained in their household at Branksome a 
number of gentlemen of their own name, who 
held lands from their chief for the military 
service of watching and guarding his castle. 

Nine and twenty knights of fame 

Hun" their shields in Branksome Hall 



108 LEGAL LORE. 

Nine and twenty squires of name 

Brought them their steeds from bower to stall. 
Nine and twenty yeomen tall 

Waited duteous on them all. 
They were all knights of metal true, 
Kinsmen to the bold Buceleuch. 

" Lay of the Last Minstrel." — Scott. 
Canto i., III. 



Haws of the forest 

liv Edward Pe vcoce, is. \. 

THE subjeel of "The Laws of the Forest 
and of the wild things which have their 
homes therein, both in our own island and else- 
where, lias been a matter of discussion for ao-es ; 
Inn very little has hern written thereon which is 
of much service, except to legal specialists. It is, 
indeed, one of those difficult subjects which is 
hardly possible to make interesting to those 
whose thoughts range in the present rather than 
in the past. 

There can be no doubt whatever, that from the 
birth of the human race, long ere we can trace our 
history back in written documents, the killing <>!' 
animals has been a sport as well as a means of pro- 
curing food ; both these may be considered, what- 
ever certain dreamers may aver to the contrary, 
as among the necessities of human life. We can- 
not be quite certain whether the stone axes, 
hammers, and spears, of which we see such 
numbers in our museums, were wrought in 



110 LEGAL LORE. 

anticipation of the delights of the chase, or 
whether they were simply, what may be called, 
the tools of the primseval butcher ; but, knowing 
as w T e do, the contempt in which every man at 
the present hour is held, who having wealth and 
leisure enough to indulge in what is called " sport," 
abstains from amusing himself in some form of 
slaughter, we may well believe that our palaeoli- 
thic predecessors, however empty the larder 
might be, would try to impose on themselves that 
what they did was done to amuse themselves, as 
a manly exercise, not a stern necessity. In con- 
firmation of this, we must call mind that there 
have been found several weapons with the rein- 
deer and other animals carved, or perhaps 
it would be better to say scratched, upon 
them with a high degree of pictorial excellence ; 
we may therefore infer that amusement, as 
well as appetite, occupied the minds of those 
early artists, who so deftly represented the 
creatures on whom they waged war. Had 
they merely been regarded as things to be 
eaten, such as the tinned meats we now buy from 
the provision merchant, they would never have 
been held worthy of artistic treatment. 

One of the oldest proverbs that have come down 



I..\\\s OF THE FOREST. Ill 

to us, if indeed it In- not the very oldest, is thai 
wherein we are told something 

" Of Nimrod the founder 
• )i empire and chace, 
W'lni made I he woods wonder 
And quake for their race." 

That lie was the first of the greal hunters is a 
dream of Lord Byron's, not in any way counte- 
nanced by Holy Scriptures, or any of the old 
authorities. We are simply told in Genesis that 
Nimrod was a son of Cush, and that "He began 
to be a mighty one in the earth. He was a 
mighty hunter before the Lord. Wherefore it is 
said, even as Nimrod the mighty hunter before 

© J 

the Lord."* The precise meaning of this has 
been questioned. It most likely signifies that 
X iin rod was the first person who organised those 
mighty hunting expeditions, which were so 
famous in the days of the great Oriental despo- 
tisms. From these tyrants it is probable thai 
the Forest Laws of Mediaeval Europe had their 
origin. In the sculptures that have been un- 
earthed in the dead cities of the East, hunting 

scenes of great magnificence are not uncommon, 

© © 

nor are they unknown in Egypt, where, however, 
i lhapter \., \ erses 8 and '.'. 



112 LEGAL LORE. 

the capture of fish was the more common sport, 
as the Nile may be said to have been at every 
man's door. 

That Forest Laws of some kind or other 
existed in these far-off times may be accepted 
as certain, and we may take it for granted, when 
we call to mind the general legislation then in 
force, that they were terribly cruel according to 
our modern ideas, but we can at present only 
arrive at these conclusions by inference. 

When Rome became the mistress of the world, 
we know that in many parts of the empire the 
wild creatures were rigorously preserved, but we 
do not think that they were often hunted by their 
owners. Such was rather the duty of freed men 
and slaves. Those which were fit for food were 
preserved as delicacies for the table, but the 
larger beasts, such as the lion, the tiger, the bear, 
the lynx, and perhaps even the wild cat, were 
reserved for the sports of the amphitheatre. 
Amphitheatres were much more common than is 
usually supposed. In a few places their remains 
exist still, but most of them have perished, 
serving as quarries for stone during the whole 
of the Middle Ages, and in Mohammedan lands 
to a much more modern period, perhaps even 



LAWS OF THE FOREST. 113 

to the present day. We are not Bure that 
any list of them has been preserved, or could 
now be compiled, but they were bo numerous 
throughout the empire thai the possession 
of wild beasts on the immense estates oi the 
Roman patricians musl have been a great source 
of wealth to their owners. The Roman nobles 
did not care for field-sports as the northern 
nations did. A feeling or instinct of this kind 
dies hard. At the present day the Italian cares 
much less for such amusements than the English- 
man, the German, or the inhabitants of northern 
France. Virgil, who represents more fully than 
any other heathen poet, the feelings of the better 
sort of Romans of Ins own time, says, attributing 
the woids to another, but evidently speaking his 
own thoughts : — 

•• Above aught else let the woods be dear to me."* 
This was, however, not for the sake of the 
slaughter that might be perpetrated therein, but 
on account of their many beauties and the grateful 
shade winch they afforded. Virgil was in many 
respects a modern in his love of scenery, though 
we doubt whether snow-clad mountains and craggy 
heights would have appealed to him as they have 

* Eel. II., line (hi. 



1H LEGAL LORE. 

done to us during the short time that has elapsed 
since we have been able to see them without 
discomfort. 

When the Roman Empire was in the zenith of 
its glory, there does not seem to have been in 
Gaul or Britain any vast stretches of forest. The 
country was no doubt well wooded when we 
compare it with the France or England of 
to-day, for during the last two hundred years 
trees have been wantonly destroyed, to the great 
injury of agriculture as well as local beauty, for 
the sake of supplying land-owners with ready 
money. Long continued wars have also desolated 
the national forests for the sake of supplying 
timber to the shipbuilder. 

After the various invasions which desolated so 
many parts of the Roman Empire, large portions 
of Gaul reverted to a state of nature. Towns and 
villages were burned, their inhabitants slaughtered, 
or scattered far away from their homes. A pic- 
turesque account of what followed is given in Mont- 
alembert's Les Moines d' Occident, from which we 
gather that much of Gaul had reverted to a state 
of nature, such as it was in ere civilisation had 
made its first incursions on the untamed wilderness. 
The lives of the early Gallic saints, found scattered 



LAWS OF THE FOREST. 115 

through the many volumes of the Acta Sanctorum , 
bear the like testimony, as do many parts of the 
old romances, the scenes of which so often lie 
in tlif trackless forest. 

In England, things may not have been quite so 
woeful. The population, we believe, never became 
so scanty as in Eastern Gaul. It is still a matter 
of controversy whether here the native folk were 
slaughtered or driven into the mountains of 
Wales, or whether the greater part of them were 
made bondmen. We hold the latter opinion, but 
the whole subject is beset with great difficulties. 
However this may be, it is quite certain that the 
population was very much reduced; many wide 
districts, which had been carefully cultivated by 
the Roman settlers, or natives who had adopted 
their manners, were laid waste. The picturesque 
villas, with their adjoining peasant homesteads, 
were all gone — burnt with fire, — and woodland, 
scrub, or mere sandy desolation supplied the place 
of the adjoining pleasure-grounds, farms, and 
pastures. One of these desolate tracts named 
Andredsweald stretched from Kent to the Hamp- 
shire Downs, at some points almost touching the 
Thames. Another great forest appears to have 
extended from a point a little to the north of 



116 LEGAL LORE. 

London, till it reached the forests of Rockingham 
and Sherwood. The great level of Hatfield 
Chace seems to have been a spur of this, if not so, 
they were but separated by a narrow stretch of 
cultivated land from the forest itself. Deer were 
plentiful on Hatfield Chace until the reign of 
Charles the First. They even continued to exist 
longer on the eastern side of the Trent, on a long 
and narrow belt of scrub which extended from 
Morton, near Gainsburgh, to the point where the 
Trent falls into the Humber. An ancestor of our 
own, who died as recently as 1758, was accus- 
tomed to hunt them there. As well as these 
larger forests, the whole land was dotted over 
with places once the sites of Roman dwellings, 
but which now had become either mere wastes, or 
woodlands covered with tall timber trees, inter- 
spersed with the elder, the nut, the thorn, the 
birch, the maple, and the alder. In some places 
the yew and the holly were abundant also, but they 
seem to have flourished only in widely separated 
patches. 

The Saxon and the Danish conquests came 
about gradually, and the country was in so 
disturbed a state that it was impossible for 
rigid Forest Laws to be enacted, or even if 



LAWS OE THE FOREST. 117 

written on parchment to be put in force. Be- 
sides this, the Saxon and Danish Leaders were of 
a different character from their Norman suc- 
cessors. A vague memory still haunted them 
of the \'\i-r Life once Lived in Germany and 
Scandinavia ; a life as different as can well be 
imagined from that of modern democracy, but 
still one in which every thrall, bondman, and slave 
had certain well ascertained rights, which were 
under the protection of the State and the 
Church. 

Thus it came to pass that there were in almost 
every district stretches of forest land, which were, 
in a great degree, open to the people, where men 
could fell timber for their dwellings and -laughter 
animals for food ; though even before the Norman 
Conquest had come as a shadow on the liberties 
nf Englishmen, there is reason for thinking that 
forestal-rights had become, in name at least, a 
privilege of the king and his great theigns. 

The Norman Forest Law was of a similar 
character to that which William's forefathers had 
enforced in Normandy. The country, which we 
have for ages known as France, was, in earlier 
times, broken up into many provinces, and it was 
only by a -low process thai it became one. Each 



118 LEGAL LORE. 

of these provinces had a Forest Law of its own. 
When the Normans settled in the goodly land 
which they called after themselves, they retained 
the customs which they found there. When 
William transferred the laws of his old duchy 
to his new kingdom, it could, at the first, only be 
by an act of favour that anyone could kill a beast of 
chase except himself or his retainers. This from 
the nature of things did not last long. William 
never could have intended to retain the whole of 
the vast territories which the victory of Senlac 
had given him in his own possession. He divided 
the kingdom among his chief tenants — tenants 
in capite, — and to these great men, with some 
slight exceptions, he handed over all forestal 
rights which existed in their domains, the king- 
retaining to himself for his own pleasure, and as 
a mark of dignity, some great forests, which for 
ages have remained in royal hands. 

Notwithstanding; certain Danish and Saxon 
charters, it has always been traditionally held 
that our Forest Laws come from William the 
First, and this is substantially true, though 
objections to the statement might be taken. It 
would not be unsafe to say that no one but the 
Conqueror could have enforced so drastic a 



LAWS VV THE FOREST. 11!) 

regulation. As the Bishop of Oxford has so 
truly said, "The King made and kept good 
peace. The Dane-geld and the Forest-Law were 
not too much to pay for the escape from private 
war and feudal disruption."' It is true that 
William had desolated large tracts of land to 
make them serve him for the chase; the crime 
was terrible, though exaggerated by modern 
historians ; but he had many noble qualities, so 
that those who had not personally suffered were 
willing to overlook the evil. With his son, 
William the Red, the Forest Laws became 
unbearable, and were hated by baron and villain 
alike. 

He was one of the worst kin^s which ever 
disgraced the English throne. In a deeply 
religious age he was wantonly opposed to all god- 
liness. Alike the enemy of God and Man, a type 
and representative of all things evil, we need not 
wonder when he fell by an arrow in the New 
Forest, that men saw a visible judgment of 
God. 

T«> him, and to Henry the First, are com- 
monly ascribed the ferocity of the Forest Laws. 
Men believed that in after time kings would have 

* Constitutional History of England, I. Ed., Vol. I., p. 2S9. 



120 LEGAL LORE. 

mitigated matters had it been in their power. 
They said, and there is much truth in the aver- 
ment, that these bad laws required the support of 
an army of evil men to work them efficiently, and 
that for the ordinary court officials, or the king 
himself, to thwart these people would be especially 
dangerous. When we call to mind what have 
been from time to time the characters of the 
farmers of the taxes at Naples, and various parts 
of France, we cannot deny that there is much 
truth in the statement. 

Affairs reached their most evil point when 
Henry II. was King. It was then the custom 
for the royal foresters to be a complete law unto 
themselves, they put to death and mutilated 
whom they would without any trial whatever, 
or with but the mockery of the water-ordeal, a 
farce which had already been condemned by the 
Church, but which was very fashionable with 
ruffians who were anxious to secure a conviction. 
One of these fellows laid hold of an ecclesiastic, 
with the intention of extracting from him a large 
sum of money. Well was it for him that he was 
of the diocese of Lincoln, and that at that time 
Hugh of Avalon was its bishop. The thunders 
of excommunication were at once heard, the 



LAWS OF THE FOREST. 121 

ecclesiastic escaped from the forester's clutches, 
and from that time forward, though much vi 
remained to be done, the tide turned, and the 
Forest Laws were administered with something 
more nearly approaching to justice. 



Grial b\> 3ur\> in ©lfc> Gimee. 

By Thomas Frost. 

WHEN we congratulate ourselves, as we are 
so apt to do, on the length of time the 
system of trial by jury has been established in 
England, and the safeguard it affords against 
attempts to strain the law to the prejudice of the 
accused, we are often unmindful of the fact that 
the institution has not always proved a safeguard 
when the court, acting under the influence of the 
Crown, endeavoured to obtain a conviction. It 
was only in the latter half of the sixteenth 
century that juries began to evince that deter- 
mination not to yield their own judgment to the 
wishes of those in high authority, which became 
further developed in the course of the seventeenth. 
An interesting illustration of the old spirit of 
judges, and the new spirit of juries, is afforded by 
the trial of Sir Nicholas Throckmorton, in 1554, 
on a charge of high treason, in conspiring the 
death or deposition of the Queen, and the seizure 
by force of arms of the Tower of London. The 



TRIAL BY JURY IN OLD TIMES. 123 

prosecution was conducted by Serjeant Stanford 
and the Attorney-General, Griffin, the former 
leading ; and it is noteworthy that both they and 
Chief* Justice Bromley questioned the prisoner in 
much the same manner as is still customary in 
France and Belgium, striving to procure evidence 
that would convict him out of his own mouth. 
The endeavour failed, and the only criminating 
evidence against the prisoner was contained in the 
alleged confessions of Winter and Crofts, who, 
however, were not called as witnesses. 

The jury, after several hours' deliberation, 
returned a verdict of not guilty, upon which the 
Lord Chief Justice addressed them in threatening 

o 

tones, saying, "Remember yourselves better. Have 
you considered substantially the whole evidence 
as it was declared and recited ? The matter doth 
touch the Queen's highness and yourselves also. 
Take good heed what you do." The jury were 
firm, however, and the foreman replied to the 
remonstrance of the bench, "We have found him 
not guilty, agreeable to all our consciences." 
Then the Attorney-General rose, and addressing 
the court, said, "An it please you. my lords, for- 
asmuch as it seemeth these men of the jury, which 
have strangely acquitted the prisoner of his 



124 LEGAL LORE. 

treasons whereof he was indicted, will forthwith 
depart the court, I pray you for the Queen that 
they and every one of them may be bound in a 
recognizance of £500 a-piece, to answer to such 
matters as they shall be charged with in the 
Queen's behalf, whensoever they shall be charged 
or called." The court went beyond even this 
audacious request, for they actually committed 
the jury to prison ! Four of them were discharged 
shortly afterwards, having so little moral stamina 
left as to make a humble confession that they had 
done wrong ; but the remaining eight were 
brought before the Star Chamber and severely 
dealt with, three being ordered to pay a fine of 
£2,000 each, and the others £200 each. 

In the following reign, in a case in which three 
persons were indicted for murder, and the jury 
found them guilty of manslaughter only, contrary 
to the direction of the court, the jurors were both 
fined and bound in recognizances for their future 
"good behaviour." A decision of the Lord 
Chancellor, the two Chief Justices, and the Chief 
Baron, in the reign of James I., sets forth that 
when a person is found guilty on indictment, the 
jury should not be questioned; but when a jury 
has acquitted a prisoner against what the court 



TRIAL BY JURY IN OLD TIMES. L25 

holds to be proof of guilt, they may be charged 

in the Star Chamber, "for their partiality in 

finding a ma nifesl offender not guilty." In L667 3 

we find this view extended to the ease of grand 

© 

juries ignoring a bill on grounds which the courl 
did not consider sufficient, Chief Justice Kelying 
in that year having fined a grand jury of the 
County of Somerset, for not finding a true hill 
against a man accused of murder; hut, says the 
report, " because they were gentlemen of repute 
in the county, the court spared the fine." This 
case, and several others in which the same judge 
had acted in a similar manner, were brought 
under the notice of the House of Commons, how- 
ever, and that assembly resolved "that the pre- 
cedents and practice of fining or imprisoning 
jurors for verdicts is illegal." 

Notwithstanding this resolution of the House 
of Commons, William Penn, and another member 
of the Society of Friends, named Mead, being 
indicted at the Old Bailey for having, with other 
persons unknown, unlawfully and tumultuously 
assembled in Gracechurch Street, in the City of 
London, the Recorder dealt with the jury in a 
manner which caused the illegality of fining jurors 

for their verdicts to be again brought into 

© © 



126 LEGAL LORE. 

question. The indictment set forth that Penn, 
by agreement with and abetment of Mead, did in 
the open street speak and preach to the persons 
there assembled, by reason whereof a great con- 
course of people gathered and remained a long 
time, in contempt of the King and the law, and 
to the great terror and disturbance of many of 
His Majesty's liege subjects. The trial took 
place before the Recorder, the Lord Mayor, and 
the Aldermen ; and when witnesses had deposed 
that Penn had preached, and that Mead was 
there with him, the Recorder summed up the 
evidence, and the jury retired to consider their 
verdict. They were absent a considerable time, 
at length returning with the verdict that Penn 
was " guilty of speaking in Gracechurch Street." 

" Is that all ? " the Recorder asked. 

" That is all I have in commission," replied the 
foreman. 

"You had as good say nothing," observed the 
Recorder, and the Lord Mayor added, " Was it 
not an unlawful assembly ? You mean he was 
speaking to a tumult of people there." 

" My lord," returned the foreman, " that is all 
I have in commission." 

" The law of England," said the Recorder " will 



TRIAL BY JURY IN OLD TIMES. 127 

Dot allow you to part until you have given in 
your verdict.'' 

"We have given in our verdict," returned the 
jury, "and we can give in no other." 

"Gentlemen," said the Recorder, "you have 
not given in your verdict, and you had as good 
say nothing; therefore go and consider it once 
more, that we may make an end of this trouble- 
some business." 

The jury then asked for pen, ink, and paper, 
and the request being complied with, they again 
retired, returning after a brief interval with their 
verdict in writing. They found Penn "guilty of 
speaking or preaching to an assembly met to- 
gether in Gracechurch Street," and Mead not 
guilty. 

" Gentlemen," said the Recorder, regarding the 
jury angrily, "you shall not be dismissed till we 
have a verdict that the court will accept ; and you 
shall be locked up, without meat, drink, fire, and 
tobacco. You shall not think thus to abuse the 
court. We will have a verdict, or you shall 
starve for it." 

Penn protested against this course, upon which 
the Recorder ordered the officers of the court to 
stop his mouth or remove him. The jury not 



128 LEGAL LORE. 

leaving their box, the Recorder again directed 
them to retire and re-consider their verdict. 
Penn made a spirited remonstrance. " The 
agreement of twelve men," said he, "is a verdict 
in law, and such a one having been given by the 
jury, I require the clerk of the peace to record it, 
as he will answer at his peril. And if the jury 
bring in another verdict contradictory to this, I 
affirm they are perjured men in law. You are 
Englishmen," he added, turning to the jury, "mind 
your privilege ; give not away your right." The 
court then adjourned to the following morning, 
when the prisoners were brought to the bar, and 
the jury, who had been locked up all night, were 
sent for. They were firm of purpose, and through 
their foreman persisted in their verdict. 

" What is this to the purpose ? " demanded the 
Recorder, " I will have a verdict." Then 
addressing a juror, named Bushel, whom he had 
threatened on the previous day, he said, "you are 
a factious fellow ; I will set a mark on you, and 
whilst I have anything to do in the city, I will 
have an eye on you." 

Penn again protested against the jury being 
threatened in this manner, upon which the Lord 
Mayor ordered that his mouth should be stopped, 



TRIAL BY JURY IN old TIMES. 129 

and that the gaoler should brine: fetters find chain 
him to the floor; but it does not appear that this 
was done. The jury were again directed to retire 
and bring in a different verdict, and they with- 
drew under protest, the foreman saying, "We 
have given in our verdict, and all agreed to it ; 
and if we give in another, it will be a force upon 
us to save our lives." 

According to the narrative written bv Penn 
and Mead, and quoted in Forsyth's " History of 
Trial by Jury," this scene took place on Sunday 
morning, and the court adjourned again to the 
following day, when, unless they were supplied 
with food surreptitiously, they must have fasted 
since Saturday. The foreman gave in their 
verdict in writing, as before, to which they had 
severally subscribed their names. The clerk 
received it, but was prevented from reading it by 
the Recorder, who desired him to ask for a 
"positive verdict." 

" That is our verdict," said the foreman. " We 
have subscribed to it." 

" Then hearken to your verdict," said the clerk. 
"You say that William Penn is not guilty in 
manner and form as he stands indicted; you say 
that William Mead is not guilty in manner and 



130 LEGAL LORE. 

form as he stands indicted ; and so say you all." 

The jury responded affirmatively, and their 
names were then called over, and each juror was 
commanded to give his separate verdict, which 
they did unanimously. 

" I am sorry, gentlemen," the Recorder then 
said, " you have followed your own judgments 
and opinions, rather than the good and wholesome 
advice which was given you. God keep my life 
out of your hands ! But for this the court fines 
3 t ou forty marks a man, and imprisonment till 
paid." 

Penn was about to leave the dock, but was 
prevented from doing so, upon which he said, 
" I demand my liberty, being freed by the jury." 

" You are in for your fines," the Lord Mayor 
told the prisoners. 

" Fines, for what ? " demanded Penn. 

" For contempt of court," replied the Lord 
Mayor. 

"I ask," exclaimed Penn, ''if it be according 
to the fundamental laws of England, that any 
Englishman should be fined or amerced but by 
the judgment of his peers or jury ; since it 
expressly contradicts the fourteenth and twenty- 
ninth chapters of the Great Charter of England, 



TRIAL BY JURY IX OLD TIMES. 131 

which say, 'No freeman oughl to be amerced l>ut 
by the oath of good and lawful men of the 
vicinage.' " 

"Take him away," cried the Recorder. 

"They then," continues the narrative, "hauled 
the prisoners into the bail-dock, and from thence 
sent them to Newgate, for non-payment of their 
fines ; and so were their jury. But the jury were 
afterwards discharged upon an habeas corpus, 
returnable in the Common Pleas, where their 
commitment was adjudged illegal." Even then, 
judges appear to have remained unconvinced of 
the illegality of the practice, or stubborn in their 
desire to enforce their own views or wishes upon 
juries ; for the question was not regarded as 
finally settled until the decision in the Court of 
Common Pleas was clinched, in the same year, by 
a similar judgment of the Court of King's Bench. 



Barbarous punisbmcnts. 

By Sidney W. Clarke. 

THAT the world has become more merciful 
as it has grown older, is a truism at once 
apparent to anyone who gives even a cursory 
glance at any of the numerous works dealing 
with the criminal laws of the olden time. Still 
the approach to the most excellent quality has 
been regretably and painfully slow, and it is 
surely a stain on the boasted enlightenment of 
the nineteenth century, that the century had run 
through nearly three-fourths of its existence 
before the terrible and vindictive punishment of 
drawing and quartering disappeared from our 
statute book. In most States the early laws 
have been of a blood-thirsty and fear-inspiring 
nature, but what excuse can be urged for the fact 
that until the fourth day of July, in the year of 
Grace 1870, the punishment ordained by law for 
the crime of high treason, was that the un- 
fortunate offender should be drawn on a hurdle 
to the place of execution, there to be hanged by 



BARBAROUS LH'X ISH.M KNTS. 133 

the aeck (ill he be dead; iliut his bead be 
severed from his hotly ; that his body be divided 
into four quarters; and that his head and 
quarters be at the disposal of the Crown. In 
Blackstone's time the sentence was still more 
savage, or, as the great Commentator puts it, 
'■ very solemn and terrible." It was that the 
offender be drawn to the gallows, and not be 
carried or walk ; " though usually," says Black- 
stone, "by connivance, at length ripened by 
humanity into law, a sledge or hurdle was 
allowed to preserve the offender from the extreme 
torment of beinsf dragged on the o-round or 
pavement ; " that he be hanged by the neck and 
then cut down alive ; that his entrails be taken 
out, and burned before his eyes, while he was 
still alive ; that his head be cut off, his body be 
divided into four parts, and his head and quarters 
be at the King's disposal. What our tender- 
hearted monarchs did with the quivering pieces 
of flesh let the stones of Temple Bar, the City 
Gates, and the Tower bear witness. Here are a 
couple of extracts from that perennial fountain of 
information, the diary of Mr. Samuel Pepys. 
Under date of October L3th, l(i()0, he writes, 
" I went out to Charing Cross to see Major- 



134 LEGAL LORE 

General Harrison," one of the regicides, "hanged, 
drawn, and quartered, which was done there, he 
looking as cheerful as any man could do in that 
condition." Note the grim humour of the words 
in italics. " He was presently cut down, and his 
head and heart shown to the people, at which 
there was great shouts of joy." Again, on 
October 20th, in the same year : — " This after- 
noon going through London and calling at 
Crowe's, the upholsterer's, in St. Bartholomew's, 
I saw the limbs of some of our new traytors set 
upon Aldersgate, which was a sad sight to see ; 
and a bloody week this and the last have been, 
there being ten hanged, drawn, and quartered." 

It will be observed that the masculine gender 
is used in the foregoing sentences for high 
treason ; for, if the offender was a woman, the law 
with a delicacy (!) one would hardly have 
expected, recognised that " the decency due to the 
sex forbids the exposing and publicly mutilating 
their bodies ; " so a woman was simply to be drawn 
to the gallows, and there burned alive. And 
these punishments for treason Sir Edward Coke 
attempted to justify on Scriptural grounds, 
adding " it is punishment undoubtedly just, for 
our liege lord the King is lord of every one of 



BARBAROUS PUNISHMENTS. L35 

our members, and they have severally conspired 
against him, and should each one Buffer." 
Evidently justice has not always spelt humanity. 
Auot her of the horrible punishments decreed 
by English law was that of boiling to death, 
which in the reign of Henry VIII. was inflicted 
for poisoning, and recalls the most cruel tortures 
ol* China and the Orient, where slicing to death 
and impalement alive are or were common forms 
of punishment. The awful fate of being boiled 
alive was specially devised for the benefit of 
John Roose, a cook, who had been convicted of 
throwing poison into a pot of broth intended for 
the family of the Bishop of Rochester and for 
the poor of the Parish ; in 1542, Margaret 
Davey suffered the same lingering death at 
Smithfield. So fearful were our ancestors of 
poison, that in Scotland, in 1(501, Thomas Bellie, 
a burgess of Brechin, and his son were banished 
for life by the High Court of Justiciary, for the 
heinous offence of poisoning a couple of trouble- 
some hens belonging to a neighbour. Even the 
laws of Draco, said on account of their severity 
to have been written not in ink but in blood, can 
scarcely compete with these examples of British 
barbarity. 



136 LEGAL LORE. 

Among the Romans strangulation, precipi- 
tation from a rocky height (a mode of carrying 
out the death sentence still found amongst savage 
tribes), and lashing to death were forms of 
punishment. Soldiers guilty of military offences 
had to run the gauntlet. Upon a given signal 
all the soldiers of the legion to which the offender 
belonged fell upon him with sticks and stones, 
and generally killed him on the spot. If, 
however, he succeeded in making his escape, he 
was thenceforth an exile from his native country. 
Offending slaves were first scourged and then 
crucified. They were compelled to carry the 
cross to the place of execution, and after being 
suspended were left to perish by slow degrees. 
Crucifixion was abolished throughout the Roman 
Empire by Constantine, out of reverence to the 
sacred symbol. Other cruel punishments were 
burning alive, exposure to wild animals, and 
condemnation to fight as gladiators in the arena 
for the amusement of the citizens. The second 
of these modes of death, for death was the 
invariable result, was the one usually meted out 
to the early Christians — " If the Tiber overflows 
its banks ; if there be a famine or plague ; if there 
be a cold, a dry, or a scorching season ; if any 



BARBAROUS PUNISHMENTS. 137 

public calamity overtakes us; the universal cry 
of the people is — ''To the lion with the 
Christians Christian! ad leonem ! " 

Parricide was punished in ;i strange manner. 
The criminal, after being scourged, was tied or 
sewed up in a leather bag, wit 1 1 ;i dog, a cock, a 
viper, and an ape to keep him company, and so 
cast into the sea. The Egyptians punished the 
same offence by sticking the prisoner all over with 
pointed reeds, and then throwing him upon a fire 
of burning thorns, where he lay till he was 
consumed. 

With most nations the Lex talionis, or punish- 
ment of retaliation — an eye for an eye, a limb for 
a limb —has found a place in the penal system. 
It was not, indeed, always carried out to its logical 
conclusion, but rather became the subject of many 
subtle distinctions. Among the Athenians, Solon 
decreed that whoever put out the eye of a one- 
eyed person should for so doing lose both his 
own. But what, it was asked, should be done 
where a one-eyed man happened to put out one 
of his neighbour's eyes ? Should he lose his only 
eve by way of retaliation ? If so, he would then 
be quite blind, and would so suffer a greater 
injury than he had caused. The law of the Jews 



138 LEGAL LORE. 

and Egyptians compelled anyone, who without 
lawful excuse was found with a deadly poison in 
his possession, to himself swallow the poison. An 
instance of a kind of lex talionis in our own 
country is found in the reign of Edward I., when 
incendiaries were burnt to death. Another 
example is that, from the reign of Henry VIII. 
to that of George IV., to strike a blow and draw 
blood within the precincts of the King's palace, 
entailed on the offender the loss of his right hand. 
Here are some of the regulations prescribed by 
the statute 33 Henry VIII., chapter 12, for the 
infliction of the punishment :— 

" viii. And for the further declaration of the solemn and 
due circumstance of the execution appertaining and of 
long time used and accustomed, to and for such 
malicious strikings, by reason whereof blood is, hath 
been, or hereafter shall be shed against the King's 
peace. It is therefore enacted by the authority afore- 
said, that the Sergeant or Chief Surgeon for the time 
being, or his deputy of the King's household, his heirs 
and successors, shall be ready at the time and place of 
execution, as shall be appointed as is aforesaid, to sear 
the stump when the hand is stricken off. 

" ix. And the Sergeant of the Pantry shall be also then 
and there ready to give bread to the party that shall 
have his hand so stricken off. 

" x. And the Sergeant of the Cellar shall also be then 
and there ready with a pot of red wine to give the 



BARBAROUS PUNISHMENTS. 139 

same party drink after his hand is so Btricken off and 
i he stump seared. 

" xi. And the Sergeant of the Ewry shall also be then 
and there ready with cloths sufficient for the Surgeon 
tn occupy about the same execution. 

"xii. And the Yeoman of the Chandry shall also he then 
and there, and have in readiness seared cloths sufficient 
for the Surgeon to occupy about the same execution. 

u xiii. And the Master Cook shall he also then and there 
ready, and shall bring with him a dressing-knife, and shall 
deliver the same knife at the place of execution to the 
Sergeant of the Larder, who shall he also then and 
there ready, and hold upright the dressing-knife till 
execution be done." 

" xiv. And the Sergeant of the Poultry shall he also then 
and there ready with a cock in his hand, ready for the 
Surgeon to wrap about the same stump, when the hand 
shall be so stricken off. 

" xv. And the Yeoman of the Scullery to be also then 
and there ready, and prepare and make at the place of 
execution a fire of coals, and there to make ready 
searing-irons against the said Surgeon or his deputy 
shall occupy the same. 

"xvi. And the Sergeant or Chief Ferror shall be also 
then and there ready, and bring with him the searing- 
irons, and deliver the same to the same Sergeant or 
Chief Surgeon or to his deputy when they be hot. 

" xvii. And the Groom of the Salcery shall be also then 
and there ready with vinegar and cold water, and give 
attendance upon the said Surgeon or his deputy until 
the same execution he done. 



140 LEGAL LORE. 

" xviii. And the Sergeant of the Woodyard shall bring to 
the said place of execution a block, with a betil, a staple, 
and cords to bind the said hand upon the block while 
execution is in doing." 



Iii addition to losing his hand, the unfortunate 
offender was imprisoned for life. It was not 
until 1829 that this punishment was abolished, 
after having been in existence for a period of 
287 years. 

A curious mode of punishment, intended to 
make its victim the object of popular ridicule, was 
in vogue in the ancient German Empire, where 
persons who endeavoured to create tumults and 
to disturb the public tranquility were condemned 
to carry a dog upon their shoulders from one large 
town to another. 

The penal laws of France were every wit as 
inhuman as our own — burning alive, breaking on 
the wheel, hanging, beheading, and quartering 
were common forms of punishment. Awful 
atrocities were committed on living victims, such 
as tearing off the flesh with red-hot pincers, 
pouring molten lead and brimstone into the wounds, 
and cutting out the tongue. The following is the 
sentence passed upon Ravaillac, the assassin of 
Henry IV., in 1610 : — He was first to be privily 



i;ai;i:ai:< >rs itnish.mkxts. hi 

tortured and then earried to the place of execution. 
There the flesh was to he torn with red-hot pincers 
from his breasts, his arms and thighs, and the 
calves of his legs; his right hand, holding tin 
knife wherewith he committed his crime, was to be 
scorched and burned with flaming brimstone ; on 
the places where the flesh had been torn off a 
mixture of melted lead, boiling oil, scalding pitch, 
wax, and brimstone was to be poured ; after this 
he was to be torn in pieces by four horses, and his 
limbs and body burned to ashes and dispersed in 
the air. His goods and chattels were confiscated ; 
the house in which he was born was pulled down ; 
his father and mother were banished, and his other 
relatives commanded to change the name of 
Ravaillac for some other. This sentence was not, 
surely, a vindication of outraged justice, but rather 
a purile and barbarous legal revenge. 

To return to the laws of our own country. 
Multilation of one sort or another was long a 
favourite mode of punishment ; pulling out the 
tongue for slander, cutting off the nose for adultery, 
emasculation for counterfeiting money, and so on. 
In Foxe's " Book of Martyrs" there is an account 
of a miracle which was worked on the person of a 
mutilated criminal. A Bedfordshire man was eon- 



142 LEGAL LORE. 

victed of theft, and for his crime his eyes were 
pulled out and other abominable mutilations were 
inflicted on him. The sufferer repaired to the 
shrine of St. Thomas at Canterbury, where after 
devout and steadfast prayer the parts he had lost 
were, so we are told, miraculously restored. 
Anyone who fought with weapons in a church had 
an ear cut off, or if he had already lost both his 
ears was branded in the cheek with the letter F. 

By an Act passed in the reign of Queen 
Elizabeth, the punishment for forgery was that 
the offender should stand in the pillory and have 
his ears cut off by the common hangman, his 
nostrils slit up and seared, and then suffer 
imprisonment for life. In 1731 Joseph Cook, 
aged 70 years, underwent this punishment, the 
mutilation taking place while he stood in the 
pillory at Charing Cross. 

The Coventry Act (22-23 Charles II., chapter 
1.) was passed in consequence of Sir John Coventry 
having been assaulted in the street and his 
nose slit, out of revenge as was supposed. It 
enacted that if any person should of malice, 
aforethought, and by lying in wait, cut out or 
disable the tongue, put out an eye, slit the nose, 
or cut off or disable any limb or member of any 



UARIiAHors ITNISH.M I'.NTS. 1 I:; 

other person, with intent to main or bo disfigure 
him, such person, his councillors, aiders, and 
al»et tors, should be guilty of felony without benefit 
of clergy, which implied the punishment of death. 
This Act was not repealed until L 828, and resulted 
in at least one curious ease. In 1772, one Coke 
and a labourer named Woodburn were indicted 
under the Act — Coke for hiring and abetting 
Woodburn, and Woodburn for the actual offence 
of slitting the nose of one Crispe, who was Coke's 
brother-in-law. The intention of the accused was 
to murder Crispe, and they left him for dead, 
having terribly hacked and disfigured him with a 
hedge-bill, but he recovered. An attempt to 
murder was not then a felony, but under the 
Coventry Act to disfigure with an intent to 
disfigure was ; and the accused were indicted for 
the latter offence. Coke, in the course of his 
defence, raised the point that the attack on Crispe 
was made with intent to murder him and not with 
intent to disfigure, therefore, he contended, the 
offence was not within the statute under which he 
was indicted. But the court held that if a man 
attacked another intending to murder him, with 
such an instrument as a hedge-bill, which could 
not but endanger a disfiguring of the victim, and 



144 LEGAL LORE. 

in such attack happened not to kill but only to 
disfigure, he might be indicted for disfiguring. 
The jury found the prisoners guilty, and they 
were condemned and duly executed. 

The laws for the protection of trade decreed 
many cruel punishments. Thus, in the reign of 
Elizabeth, an Act passed for the encouragement of 
the woollen industry prescribed that the penalty 
for taking live sheep out of the country should be 
forfeiture of goods, imprisonment for a year, and 
that at the end of the year the left hand of the 
prisoner should be cut off in a public market, and 
be there nailed up in the most public place. A 
second offence was punishable with death. By 
statute 21 James 1, chapter 19, anyone unfortunate 
enough to become a bankrupt was nailed by one 
ear to the pillory for two hours, and then had the 
ear cut off. Under the Romans a bankrupt was 
treated still more unmercifully, for at the option 
of his creditors he was either cut to pieces or sold 
to foreigners beyond the Tiber. 

A longstanding disgrace to the intelligence and 
humanity of our countrymen was the fact that in 
former times burning alive was the inevitable fate 
of poor wretches convicted of witchcraft, the penal 
laws against which were not repeated until 1736. 



BARBAROUS PUNISHMENTS. 1 15 

So late as 1712, five so called witches were hung 
at Northampton, and in 1716 Mrs Hicks, and her 
daughter, aued nine, were condemned to death at 
Huntingdon for selling their souls to the devil. 
Even children of tender years were not spared, 
but with their elders alike fell victims to our law's 
barbarity ; there are many recorded instances of 
children under ten years of age being executed. 
In Scotland the last execution for witchcraft took 
place in 1722. 

Space will not permit any attempt to run through 
the whole gamut of legal iniquities ; at most we 
can only attempt a very incomplete catalogue of 
the inhumanities at one time or another incident 
to our penal codes, and with a final horror we 
must bring this article to an end. The punish- 
ment with which we are now about to deal, that 
of pressing to death, peine Jorte et dure as it was 
called, is perhaps the most noteable example of 
the former barbarity of our law, since it was 
inflicted before trial on innocent and guilty alike, 
who refused to plead " Guilty" or " Not Guilty'' 
to an indictment for felony. What this punish- 
ment was, which was first instituted in 1406, can 
best be told by giving the form of the judgment 

of the court against the person who refused to 

10 



146 LEGAL LORE. 

plead : — That the prisoner shall be remanded to 
the place from whence he came, and put in some 
low, dark room, and that he shall lie without 
any litter or other thing under him, and without 
any manner of covering ; that one arm shall be 
drawn to one quarter of the room with a cord and 
the other to another, and that his feet shall be 
used in the same manner ; and that as many 
weights shall be laid upon him as he can bear, and 
more ; that he shall have three morsels of barley 
bread a day, and that he shall have the water next 
the prison, so that it be not current ; and that he 
shall not eat the same day on which he drinks, 
nor drink the same day on which he eats ; and 
that he shall continue so till he die or answer. 

P eh he forte, et dure was not abolished till 1772, 
and was frequently undergone by accused persons 
in order to preserve their estates from being 
forfeited to the Crown, which would have been 
the case if they had stood their trial and been 
found guilty. The year 1741 is probably the last 
date on which the punishment was inflicted. In 
1721, two men, Thomas Cross and Thomas Spigot, 
were ordered to be pressed to death at the Old 
Bailey. Cross gave in on seeing the preparations 
made for his torture, but Spigot was made of 



liAIMJAHOUS PUNISHMENTS. 147 

stonier stuff. In the "Annals of Newgate" is a 
description of his sufferings: — "The chaplain 
found him lying in the vault upon the bare 
ground with 350 pounds weight upon his breast, 
and then prayed by him, and at several times 
asked him why he would hazard his soul by such 
obstinate kind of self-murder. But all the answer 
that he made was — 'Pray for me, pray for me!' 
He sometimes lay silent under the pressure, as if 
insensible to pain, and then again would fetch his 
breath very quick and short. Several times he 
complained that they had laid a cruel weight upon 
his face, though it was covered with nothing but 
a thin cloth, which was afterwards removed and 
laid more light and hollow ; yet he still complained 
of the prodigious weight upon his face, which 
might be caused by the blood being forced up 
thither, and pressing the veins as violently as if 
the force had been externally upon his face. 
When he had remained for half-an-hour under 
this load, and 50 pounds weight more laid on, 
being in all 400 pounds, he told those who 
attended him he would plead. The weights were 
at once taken off, the cords cut asunder ; he was 
raised by two men, some brandy w 7 as put into his 
mouth to revive him, and he was carried to take 



148 LEGAL LORE. 

his trial." In 1735, a man, who pretended to be 
dumb at the Sussex Assizes, was sent to Horsham 
Gaol to be pressed to death unless he would plead. 
He endured in agony a weight of 350 pounds, and 
then the executioner, who weighed over 16 stones, 
laid himself upon the board upon which the 
weights were placed, and killed the wretched 
man instantly. 



trials of Hnimals. 

By Thomas Frost. 

ONE of the most singular features of the 
jurisprudence of the middle ages, and one 
which was retained in the French code down to 
nearly the middle of the last century, was the 
indictment of domestic animals for injuries inflicted 
on mankind. The records of the criminal tribunals 
of France disclose ninety-two such judicial pro- 
cesses between 1120 and 1741, when the last of 
these grotesque trials took place in Poitou. The 
practice seems to have been based on the Mosaic 
law, it being there ordered that, " if an ox gore a 
man or a woman that they die, then the ox shall 
be stoned, and his flesh shall not be eaten." 
(Exodus, c. xxi., v. 28.) Oxen and pigs were the 
animals that most frequently were the subjects of 
these strange proceedings, the indictment against 
the former being for goring persons, while the 
latter suffered for killing and sometimes devouring 
very young children. 

The earliest instance of which any particulars 



150 LEGAL LORE. 

can be gathered occurred in 1314, when, according 
to M. Carlier, who relates the story in his history 
of the Duchy of Valois, a bull escaped from a 
farm-yard in the village of Moisy, and gored a 
man so severely that death ensued. The Count 
of Valois, being informed of the fatility, directed 
that the bull should be captured, and formally 
prosecuted for causing the man's death. This was 
done, and evidence was given by persons who had 
seen the man attacked and killed. The bull was 
thereupon sentenced to suffer death, which was 
inflicted by strangulation, after which the carcase 
was suspended from a tree by the hind legs. But 
the affair did not end thus, for the sentence was 
appealed against, probably by the owner of the 
bull, on the ground that the retainers of the 
Count of Valois had no legal authority to execute 
the sentence. This plea was debated at great 
length, and the provincial parliament eventually 
decided that, though the sentence was a just one, 
the Count of Valois had no justiciary authority 
in the district of Moisy. 

Next in the order of time comes the trial at 
Falaise of a sow which had torn the face and arm 
of a child, from the effects of which injuries it 
died. The sow was condemned to be mutilated 



TRIALS OF ANIMALS. 151 

in the head and one fore leg, and afterwards to be 

strangled, which sentence was executed in the 
pnUir square of* the town. This was in I :!86. 
Three years later, a horse was condemned to 
death at Dijon for having killed a man. In 1403, 
Sin ion dr Baudeniont, lieutenant of Meulan ; Jean, 
lord of Maintcnon; and the bailiff of Mantes and 
Meulan, signed an attestation of the expenses 
incurred in the prosecution and execution of a 
sow that had killed and partially eaten a child. 
The following is a copy of the document, to 
which it may be added that the story of the trial 
and execution may be found in the " Curiosites 
Judiciaires et Historiques clu Moyen Age " of 
M. Aguel : — " Item, for expenses within the gaol, 
6 sols. Item, to the executioner, who came from 
Paris to Meulan to put the sentence in execution, 
by command of our Lord the Bailiff and of the 
King's Attorney, 54 sols. Item, for the carriage 
that conveyed her to execution, 6 sols. Item, for 
ropes to tie and haul her up, 2 sols, 8 deniers. 
Item, for gloves, 12 deniers; amounting in the 
whole to 69 sols, 8 deniers." In connection with 
the first item of this curious document, it may be 
observed that, in a receipt delivered five years 
later by a notary of Pont de l'Arche to the gaoler 



152 LEGAL LORE. 

of the prison of that town, the same amount is 
allowed for the daily food of a pig, imprisoned on 
the charge of killing a child, as for a man in the 
same prison. The last item, the gloves, is 
supposed by M. Aguel to be a customary allow- 
ance to the executioner. 

In 1457, a sow and her six young pigs were 
tried at Lavegny, on the charge of having killed 
and partially eaten a child. The sow was con- 
victed, and condemned to death ; but the little 
ones were acquitted on the ground of their tender 
years or months, the bad example of their mother, 
and the absence of direct evidence of their having 
partaken of the unnatural feast. In 1494, sentence 
of death was pronounced on a pig by the Mayor 
of Laon for having mutilated and destroyed an 
infant in its cradle, full particulars of which case 
were given in the " Annuaire du Departement de 
l'Aisne " for 181*2. The act of condemnation, as 
there given, concludes as follows : — " We, in 
detestation and horror of this crime, and in order 
to make an example and satisfy justice, have 
declared, judged, sentenced, pronounced, a^nd 
appointed that the said hog, being detained a 
prisoner, and confined in the said abbey, shall be, 
by the executioner, strangled and hanged on a 



TRIALS OF ANIMALS. 153 

gibbet, near and adjoining the gallows in the 
jurisdiction of the said monks, bring near their 
copyhold of Avin. In witness of which we have 
sealed this present with our seal." This document 
was sealed with red wax, and endorsed: — " Sent- 
ence on a hog, executed by justice, brought into 
the copyhold of Clermont, and strangled on a 
gibbet at Avin." 

Three years later, a sow was condemned to be 
beaten to death for having mutilated the face of a 
child of the village of Charonne. The act of 
condemnation in this case directed further that 
the flesh of the sow should be ofiven to the doofs 
of the village, and that the owner of the sow and 
his wife should make a pilgrimage to the Church 
of Our Lady at Pontoise, and bring on their 
return a certificate that this injunction had been 
duly complied with. In 1499, a bull was strangled 
for having killed a boy in the lordship of Cauroy, 
which belonged to the abbey of Beaufire. 

Lionnois gives, in his history of Nancy, a full 
report of the proceedings on the delivery of a 
condemned pig to the executioner of that city in 
1572. He mentions, among other details, that 
the animal, secured by a cord, was led to a cross 
near the cemetery ; that from the most remote 



154 LEGAL LORE. 

period the justice of the lord, the abbot of Moyen 
Moutier, was accustomed to deliver to the provost, 
or marshal of St. Diez, near to this cross, all 
condemned criminals, that execution might ensue ; 
and that, the said pig being a brute beast, the 
mayor and the justice held a conference at that 
place, and left the said pig tied with a cord, 
without prejudice to the judicial rights of the lord. 

Judicial proceedings against the lower animals 
were not confined to France, for the list of such 
cases compiled by M. Berriat St. Prix, and 
published in the " Memoires de la Societe des 
Antiquaires" for 1829, mentions one tried at 
Lausanne in 1364, another at the same town in 
1451, a third at Basle in 1474, another at Lau- 
sanne in 1479, and a fifth at the same place in 
1554. Concerning the first of these Swiss trials, 
Ruchat states, in his history of the Protestant 
reformation in Switzerland, that the victim was a 
pig that had killed a child in the village of 
Chattens, situated among the Jorat hills. It was 
cited to appear in the Bishop's Court at Lau- 
sanne, convicted of murder, and sentenced to 
death — the executioner being a pork butcher. 

The Basle case was a very singular one. A 
farm-yard cock was tried on the absurd charge of 



TRIALS OF ANIMALS. 155 

having laid an egg. It was contended in supporl 
of the prosecution that eggs laid by cocks wen- of 
inestimable ?alue for use in certain magical 
preparations ; that a sorcerer would rather possess 
a cock's egg than the philosopher's stone; and 
thai Satan employed witches to hatch such eggs, 
from which proceeded winged serpents most 
dangerous to mankind. On behalf of the gallina- 
ceous prisoner, the facts of the case were admitted, 
but his advocate submitted that no evil animus 
had been proved against his client, and that no 
injury to man or beast had resulted. Besides, 
the laying of the egg was an involuntary act, and 
as such not punishable by law. If it was intended 
to impute the crime of sorcery to his client, he 
was entitled to an acquittal ; for there was no 
instance on record of Satan having made a compact 
with one of the brute creation. In reply, the 
public prosecutor stated that, though the Evil 
One did not make compacts with brutes, he some- 
times entered into them ; and though the swine 
possessed by devils, as related by the Evangelists, 
were involuntary agents, yet they, nevertheless, 
were punished by being caused to run down a 
steep decline into the Lake of Galilee, where they 
were drowned. The poor cock was convicted, and 



156 LEGAL LORE. 

condemned to death, not as a cock, however, but 
as a sorcerer, or perhaps a devil, in the form of a 
cock, on which finding" it was, with the egg 
attributed to it, burned at a stake, with all the 
form and solemnity of a judicial execution. 

As the lower animals were amenable to the law 
in Switzerland in those dark ages, so, in certain 
circumstances, they could be put into the witness 
box. If a house was broken into between sunset 
and sunrise, and the occupier killed the intruder, 
the act was regarded as justifiable homicide. 
Bat it was thought right to provide by law 
against the case of a man, living alone, who 
might invite a person whom he wished to kill to 
spend the evening with him, and having slain him, 
might assert that he committed the act in self- 
defence, or to protect his property, the dead man 
having been a burglar. Therefore, when a man 
was killed in such circumstances, the occupier of 
the house was required to produce some domestic 
animal that was an inmate of the house, and had 
witnessed the tragedy, and to declare his innocence 
on oath in the presence of such animal. If the 
brute witness did not contradict him, he was 
acquitted ; the law taking it for granted that God, 
rather than allow a murderer to go unpunished, 



TRIALS OF ANIMALS. 157 

would intervene by causing a miraculous mani- 
festation l>y the mouth of a dumb witness. 

Even more strange than the trials of oxen, pigs, 
etc., \'nv (i (fences against mankind, were the legal 
proceedings often taken in the middle ages against 
noxious insects and the smaller quadrupeds, such 
as rats. The " Memoires de la Societe Royale 
Academique de Savoie" contain a very curious 
account of the proceedings instituted in 1445 and 
1487 against certain beetles that had committed 
great ravages in the vineyards of St. Julien. 
Advocates were named on behalf of the vine- 
growers and the beetles respectively ; but, by a 
singular coincidence, the insects disappeared when 
cited to answer for the mischief they had done, 
and the proceedings were in consequence 
abandoned. That was in 1445. In 1487, however, 
they re-appeared, and a complaint was thereupon 
addressed to the vicar-general of the Bishop of 
Maurienne, who named a judge, and also an 
advocate to represent the beetles. Counsel 
having been heard on both sides, the judge 
suggested that the vine-growers should cede to 
the defendants certain land, where they could live 
without encroaching on the vineyards. The 
plaintiffs agreed to this compromise, with the 



158 LEGAL LORE. 

proviso that, in default of the defendants accepting 
the terms offered them, the judge would order 
that the vineyards should be respected by the 
beetles under certain penalties. The advocate for 
the beetles demanded time for consideration, and 
on the resumption of the proceedings stated that 
he could not accept, on behalf of his clients, the 
suggestion of the court, as the land proposed to 
be given up to them was barren, and afforded 
nothing upon which they could subsist. The 
court then appointed assessors to survey the land 
in question, and on their report that it was well 
wooded and provided with herbage, the conveyance 
was ordered to be engrossed in due form and 
executed. The matter was then regarded by the 
plaintiffs as settled ; but the beetles discovered, 
or their advocate discovered for them, that a 
quarry of an ochreous earth, used as a pigment, 
had formerly been worked on the land conveyed 
to the insects, and though it had long since been 
worked out, some person possessed an ancient 
right of way to it, the exercise of which would be 
extremely prejudicial to them. Consequently, 
the agreement was held to be vitiated, and the 
legal proceedings had to be recommenced de novo. 
How they eventually terminated cannot be told, 



TRIALS OF ANIMALS. 159 

owing to the mutilation of the documents relating 

to the proceedings subsequent to 1487. 

Nearly a century later, legal proceedings were 
commenced by the inhabitants of a village in the 
diocese of Autun against the rats by which their 
houses and barns were infested ; the trial being 
famous in the annals of French jurisprudence as 
that in which Chassanee, the celebrated juris- 
consult, first achieved distinction. The rats not 
appearing on the first citation, Chassanee, who 
was retained for the defence, argued that the 
summons was of too local a character, and that, 
as all the rats in the diocese of Autun were inter- 
ested in the case, they should be summoned 
throughout the diocese. This plea being admitted, 
the curd of every parish in the diocese was 
instructed to summon all the rats within its 
limits to attend on a day named in the summons. 
The day having arrived, and the rats failing to 
appear, Chassanee said that, as all his clients were 
summoned, including old and young, sick and 
healthy, great preparations had to be made, and 
certain necessary arrangements effected, and he 
had to ask, therefore, for an extension of time. 
This also being granted, another da} T was appoint- 
ed, but again not a single rat put in an appearance. 



160 LEGAL LORE. 

Chassanee then made an objection to the legality 
of the summons. A summons from that court, 
he said, implied full protection to the parties 
summoned, both on their way to it and on their 
return to their homes ; and his clients, the rats, 
though most anxious to appear in obedience to 
the court, did not dare to leave their homes to 
come to Autun, on account of the number of evil- 
disposed cats kept by the plaintiffs. If the latter 
would enter into bonds, under heavy pecuniary 
penalties, that their cats should not molest his 
clients, the summons would be immediately 
obeyed. The court acknowledged the validity of 
this plea, but the plaintiffs declined to be bound 
for the good behaviour of their cats. The further 
hearing of the case was, therefore, adjourned sine 
die, and thus Chassanee gained his cause. Full 
particulars of the proceedings are given in a Latin 
work, written by him, and published in 1588. 



devices of the Sixteenth Centura debtors. 

By James C. Macdonald, f.s.a., Scot. 

IN the year 1531, a certain John Scott, 
residenter in the good town of Edinburgh, 
was financially in a condition of chronic decrepi- 
tude. His household goods were rapidly going 
to the hammer, and one creditor, bolder than 
his fellows, decided to attack the impecunious 
personality of the common debtor. Writs from 
court and messengers of the law were severally 
set in motion ; and on the earliest possible day 
one of those myrmidons served upon the debtor 
personally, a writ bearing the terrible title of 
"Letters of IV Forms." The "coinless" John 
was therein warned that if he failed forthwith to 
pay or satisfy the lawful debt, for which decreet 
has gone out, he would (unless he went to prison 
in a peaceful way) be declared a rebel against the 
King's Majesty. 
Now John reasoned with himself that payment 

he could not make ; outlawry he rather feared ; 

11 



162 LEGAL LORE. 

and squalor carceris he could not endure. What 
was to be done ? He had heard of the horns of 
of the Hebrew altars : how 7 that personal safety 
resulted from any manual attachment thereto. 
Was there some such boon in bonny Scotland ? 
There was Holy rood, with its sanctified abbey. 
It was near ; any port in such a storm. Down 
the Canongate, and straight to the sanctuary he 
ran — all to the manifest loss, injury, and damage 
of his creditors who followed, having got w T ind of 
this unique hegira from the red-nosed city 
guard. In vain the creditors pleaded ; equally 
in vain were their threats. The canny Scot 
was warranted safe and skaithless against "all 
mortal." 

Annoyed at his debtor's immunity from arrest, 
chagrined that any money John possessed had 
now been further dissipated in the Abbey ad- 
mission dues to its protection giving portals — each 
creditor turned sadly to his " buiks of Compts " 
and superscribed over against John Scott's name 
the expressive legend "bad debt." And this 
John Scott became the forerunner, de facto, 
of a long line of " distressed " persons. Nay 
more, he secured an immortality as lasting as 
that of the sovereign whose solemnly sounding 



SIXTEENTH CENTURY DEBTORS. 1G3 

"Letters <>f I V Forms," lie spurned and left 
unanswered. 

A generation later, and another new way of 
paying old debts is placed on record. To balance 
International honours it is of Anglican origin. 
Scoggan, the jester of the Elizabethan court, falls 
into financial distress. He borrows £500 from 
the Queen — mirabile dictu. Only a fool would 
have tried such a tiling. It was put down as a 
" short loan," but it soon became clear to the 
royal lender that its longevity would outlast her 
reign. To all demands the clownish borrower 
smilingly cried "long live the queen," until at 
last his existence as court fool was in danger of 
being ended. But he would rather die than be 
evicted ; and die he did. He became, theatrically 
speaking, defunct. 

The late Scogoan was accordingly borne, to 
solemn music, past the royal garden ; and the 
queen, seeing the mournful show — and knowing 
nought of its hollowness — asked whose it was. 
" Scoggan, Your Majesty," was the reply. 
" Poor fellow," she exclaimed, " the £500 he 
owed me I now freely forgive." Whereupon the 
"defunct" sat up and declared that the royal 
generosity had given him a new lease of life. 



164 LEGAL LORE. 

'Thou rogue," said the queen, "thou art more 
rogue than fool. Thou hast improved upon the 
plan of that John Scott, who, in the reign of my 
late cousin of Scotland, as Sir James Melvil tells 
me, got rid of the oldest debt and the longest 
loan." 



laws "Relating to the iSipsies. 

By William E. A. Axon, f.r.s.l. 

EARLY in the fifteenth century the gipsies 
made their appearance in Europe, and as 
strangers were not favourably regarded in those 
days the advent of these dark-skinned people, 
speaking a language of their own, dressing in a 
picturesque, but uncommon costume, and having 
their own rulers, and their own code of morals, and 
owning no allegiance to the laws of the land in 
which they sojourned, naturally attracted atten- 
tion. At first some credence was given to their 
high-sounding pretensions, and the dukes, counts, 
and lords of Lesser Egypt received safe conducts 
and protection under the idea that they were 
engaged in religious pilgrimages. But the seal of 
the Emperor Sigismund would not protect them 
when the term of their pretended pilgrimage had 
expired, nor would the manners and customs of 
the gipsies substantiate any special claim to 
sanctity or religious fervour. Even the ages 
when the divorce was most marked between 



166 LEGAL LORE. 

religion and morals would be staggered by the 
thefts, and worse outrages that were laid to their 
charge. Sigismund's safe conducts are said to 
have been given not as Emperor, but as King of 
Hungary, and some of the gipsies were early 
employed as ironworkers in the realm of St. 
Stephen. In 1496 King Ladislaus gave a 
charter of protection to Thomas Polgar and his 
twenty five tents of gipsies because they had 
made musket bullets and other military stores for 
Bishop Sigismund at Funfkirchen, but whatever 
consideration may have been shewn to them in 
the beginning, they speedily became objects of 
suspicion and dislike. There is not a country in 
Europe which has not legislated against them 
or endeavoured to exile them by administrative 
acts. Their expulsion from Spain was decreed in 
1492, from France in 1562, and from various 
Italian states about the same time. Denmark, 
Sweden, and the Netherlands have also pro- 
nounced against them. The Diet of Augsburg 
in 1500, ordered their expulsion from Germany 
on the ground that they were spies of Turkey 
seeking to betray the Christians. This edict, 
though several times repeated, was non-effective. 
In Hungary and Transylvania the authorities, 



LAWS RELATING TO THE GIPSIES. 107 

hopeless of getting rid of the troublesome 
Immigrants, t<>ok strong incisures to 1 > i ■ i 1 1 *_r them 
into line with the rest of the population. They 
were prohibited from using the Romany tongue, 
from retaining their gipsy surnames, from 
wandering about the country, from eating carrion, 
and from dealing iii horses. Those fit for military 
service were to be taken into the army, and the 
rest were to live and dress and deport themselves 
in the same manner as the peasantry of the 
country. These regulations were not wholly 
effective, but the result of the efforts put forward 
by Maria Theresa, and her successors may be seen 
in the sedentary gipsies of the Austro-Hungarian 
Empire. At times they have been subjected 
to fierce persecution. In 1782, a dreadful 
accusation was brought against the Hungarian 
Romanis, when more than a hundred of them 
were accused of murder and cannibalism. The 
gang were said to have lived by highway robbery 
and murder, and to have cooked and eaten the 
bodies of their victims. At Frauenmark four 
women were beheaded, six men were hanged, 
two were broken on the wheel, and one was 
quartered alive. Altogether forty-five were 
executed and many more were imprisoned. 



168 LEGAL LORE. 

How much of this was suspicion substantiated by 
torture ? 

The gipsies came frequently in contact with 
the myrmidons of the law. "As soon as the 
officer seizes or forces away the culprit,'' says 
Grellmann, " he is surrounded by a swarm of his 
comrades who take unspeakable pains to procure 
the release of the prisoner. . . . When it 
comes to the infliction of punishment, and the 
malefactor receives a good number of lashes well 
laid on, in the public market place, a universal 
lamentation commences among the vile crew ; 
each stretches his throat to cry over the agony 
his dear associate is constrained to suffer. This 
is oftener the fate of the women than of the men ; 
for as the maintenance of the family depends 
most upon them, they more frequently go out for 
plunder." It is a noteworthy fact that Grellmann 
writing in 1783, has not a word of condemnation 
of the barbarous practice of flogging women. 

In England as elsewhere the earliest of these 
romantic people were welcomed. In 1519, the 
Earl of Surrey entertained " Gypsions " at 
Tendring Hall, Suffolk, and gave them a safe- 
conduct. Still earlier in 1505, Anthony Gaginus, 
Earl of Little Egypt, had a letter of recommen- 



LAWS KKLATINCi TO TIIK (ilPSIES. 169 

elation from James IV. of Scotland to the Kin*/ 
of Denmark. .lames V. bestowed a charter upon 
James Faa, Lord and Karl of Little Egypt, by 
which he was privileged to execute justice upon 
his followers, much in the same way as the 
great barons were authorised to deal with their 
vassals. But they soon fell out of favour. In 
England, in the twenty-second year of Henry 
VIII. an act of parliament was passed which 
sets forth that there are certain outlandish 
people, who not profess any craft, or trade, 
whereby to maintain themselves, but go about in 
great numbers from place to place, using craft 
and subtlety to impose on people, making them 
believe that they understood the art of foretelling 
to men and women their good or ill fortune, by 
palmistry, whereby they frequently defraud 
people of their money, likewise are guilty of 
thefts and highway robberies ; it is ordered that 
the said vagrants, commonly called Egyptians, in 
case they remain sixteen days in the kingdom, 
shall forfeit their o-oods and chattels to the kinsr 
and be further liable to imprisonment. In 1537, 
Cromwell writes to the Lord President of the 
Marches of Wales, that the " Gipcyans " had 
promised to leave the kingdom in return for a 



170 LEGAL LORE. 

general pardon for their previous offences, and 
exhorts the authorities to see that their de- 
portation is effected. Many were sent to 
Norway, but the effort to extirpate them from 
the kingdom entirely failed.* By an act of 1554, 
a penalty of £40 was to be inflicted upon any one 
knowingly importing them. Those gipsies, 
following 1 "their old accustomed devlishe and 
noughty practises," were to be treated as felons, 
but exception was made in favour of such as placed 
themselves in the service of some "honest and 
able inhabitant." Many were executed, but the 
remnant survived and managed to hold a yearly 
meeting at the Peak Cavern or Kelbrook, near 
Blackheath. Still sterner was the law passed in 
1562-3, which made it felony for any one born 
within the kingdom to join the fellowship of 
vagabonds calling themselves Egyptians. The 
previous acts had referred to the gipsies as an 
outlandish people, but now the native born were 
brought equally within the meshes of this 
sanguinary law. "Throughout the reign of 
Elizabeth," as Borrow remarks, "there was a 

* The Lord Chief Justice, John Popham, who was born in 1531, is 
said to have been stolen when a child by the gipsies. They disfigured 
him and placed on his arm a cabalistic mark. Apparently it was a 
case of tattooing. But the story is discredited. 



LAWS RELATING TO THE GIPSIES. 171 

terrible persecution of the gipsy race; far less, 
however, on account of the crimes which were 
actually committed, than from a suspicion which 
was entertained that they harboured amidst their 
companies priests and emissaries of Rome." The 
harrying of the missionary priests was in part 
dictated by the spirit of religious persecution, 
but in a still greater degree by the conviction 
that they were political emissaries, aiming at the 
subversion of the kingdom. The priests on the 
English mission had often to disguise themselves, 
and at times may have assumed the garb of 
wandering beggars, but they are not likely to 
have consorted with the Romans, whose language 
would be strange to them, and whose heathenish 
indifference to all dogmas, rites, and ceremonies, 
would be specially distasteful to zealous Catholics. 
After " the spacious times " of great Elizabeth, 
the gipsies had a rest from special oppression, 
though they were of course still in jeopardy from 
the harsh laws as to vagrancy and those minor 
crimes, that are their characteristic failings. 
Romany girls were flogged for filching and 
fortune-telling, and Romany men were hanged 
for horse-stealing. They were looked upon with 
suspicion, and it was easy enough to raise 



172 LEGAL LORE. 

prejudice against them. This was shewn in 
the notorious case of Elizabeth Canning. She 
was a girl of eighteen, employed as a domestic 
servant at Aldermanbury, and in 1753, dis- 
appeared for four weeks. On her return she 
asserted that she had been abducted and detained 
in a loft by gipsies, who gave her only bread and 
water to eat. Their aim she declared was to 
induce her to adopt an immoral life. Mrs. Wells, 
Mary Squires, George Squires, Virtue Hall, 
Fortune and Judith Natus, were arrested, and 
Wells and Squires were committed for trial. The 
proceedings, partly before Henry Fielding the 
novelist, were conducted with a laxity that seems 
now to be almost inconceivable. At the Old Bailey 
trial there was a remarkable conflict of evidence, 
but in the end Mrs. Wells was condemned to be 
burned in the hand, and Mary Squires to be 
hanged. Sir Christopher Gascoyne then Lord 
Mayor, was satisfied that there had been a 
miscarriage of justice and made enquiries, a 
respite was obtained and finally the law officers 
of the crown recommended the grant of a free 
pardon to Squires. The natural sequel was the 
prosecution of Canning for perjury. Fortune 
and Judith Natus now swore that they had slept 



LAWS RELATING TO THE GIPSIES. 173 

each uio-ht in the loft where Canning declared 
she had been imprisoned, but it was very 
natural that people should ask why they had 
not given this important evidence at the previous 
trial. Mary Squires, alibi was sworn to by 
thirty-eight witnesses who had seen her in 
Dorsetshire, and was, to some extent, invalidated 
by twenty-seven who swore that she was in 
Middlesex at the time. As she was too remark- 
able for her ugliness to be easily mistaken, there 
must have been some very "hard swearing." 
Canning was convicted of perjury and transported, 
but the secret of her absence from New Year's 
Day, 1553, until the 29th of January was never 
divulged. The case excited great interest, and 
the controversy divided the whole of the busy, 
idle "town," into " Canningites " and " Gipsyites." 
The Tudor law (22 Henry VIII., c. 10) was 
repealed as " of excessive severity" in 1783 (23 
George III., c. 51). The later legislation provides 
that persons wandering in the habit and form of 
Egyptians, and pretending to palmistry and 
fortune-telling-, are to be deemed rogues and 
vagabonds (17 Geo. II., c. 5., 3 Geo. IV., c. xl.), 
and is liable to three months' imprisonment (5 
Geo. IV., c. lxxxiii.), and encamping on a turnpike 



174 LEGAL LORE. 

road involved a penalty of forty shillings (3 Geo. 
IV., c. cxxvi., 5 and 6 William IV., c. 50). Some 
of the older enactments remained on the statute 
book, though not enforced, until the passing of 
the statute law Revision Act of 18G3, by which 
many obsolete parliamentary enactments were 
swept away. 

By the famous Poynings Act, English laws 
were declared applicable to Ireland. The gipsies 
were never common in the Isle of Saints, but by 
a special act they were, in 1634, declared to be 
rogues and vagabonds (10 and 11 Car. I., c. 4). 

There are acts of the Scottish Parliament as 
early as 1449, directed against " sorners, overliers, 
and masterful beggars with horse, hounds, or other 
goods," and that this would well describe the 
earlier gangs of gipsies is undeniable, but whether 
they were Romanis or Scots is a matter of 
controversy not easily decided in the absence of 
more definite evidence. A tradition of the 
Maclellans of Bombie says that the crest of the 
family was assumed on the slaying of the chief of a 
band of saracens or gipsies from Ireland. The 
conqueror received the barony of Bombie from 
the king as a reward. Having thus restored the 
fortunes of the family, the young laird of Bombie 



LAWS RELATING TO THE GIPSIES. L75 

took for his (-rest a moor's head with the motto 
"Think on." If this legend was evidence, which 
it is not, there were gipsy marauders in Galloway 
in the middle of the fifteenth century. But in 
1505, we have the entry of a gift by the King of 
Scotland of seven pounds to the " Egiptianis." 
In the same year there is a letter already named, 
in which "Anthonius Gagino," or Gawino, is 
recommended to the King of Denmark. In 
1527, Eken Jacks, master of a band of gipsies, 
was made answerable for a robbery from a house at 
Aberdeen. In 1539, a similar charge was 
brought, but not proved, against certain friends 
and servants to "Earl George, callet of Egipt." 
This chieftain was one of the celebrated Faa 
tribe. In 1540, George and John Faa were 
ordered by the bailies of Aberdeen to remove their 
company and goods from the town. This is the 
first action of a Scottish authority against the 
gipsies as gipsies. But, by a charter dated four 
• lavs before the municipal decree, James V. 
confirms to "our lovit Johnne Faw, lord and erle 
of Little Egipt," full power to execute justice over 
his tribe, some of whom had rebelled and forsaken 
his jurisdiction. In 1541, an act of the Lords of 
Council and Session decreed the banishment of 



176 LEGAL LORE. 

the gipsies from the realm within thirty daj^s, 
because of " the gret theftes and scathis " done by 
them. Some of them passed over the border, but 
not for long, and in 1553 the Faas again had a 
charter upholding their rights of lordship against 
Lalow and other rebels of their company. And 
in the next year their is a pardon to four Faas for 
the "slachter of umquhile Ninian Smaill." 

The gipsies had the favour of the Roslyn 
family, and it is said that Sir William Sinclair 
rescued " ane Egiptian " from the gibbet in the 
Burgh Muir, "ready to be strangled," and that in 
gratitude the tribe used to go to Roslyn yearly 
and act several plays in May and June. In 
1573, and again in 1576, the gipsies were ordered 
to leave the realm, but the decree w T as never put 
in force. When Lady Foulis was tried in 1590, 
one charge was that she had sent a servant to the 
gipsies for advice as to poison to be administered 
to "the young laird of Fowles and the young Lady 
Balnagoune." When James VI. held a High 
Court of Justicary at Holyrood in 1587, for the 
reformation of enormities, the offenders to be dealt 
with included "the wicked and counterfeit thieves 
and limmers calling themselves Egyptians." 

There were several enactments of the Scottish 



LAWS RELATING TO THE GIPSIES. 177 

Parliament in 1574, 157*.), L592, and L597. 
These were all aimed at the nomadic habits of the 
race, but the settled gipsies were Left unmolested. 
''Strong beggars and their children" were to be 
employed in common work for their whole lit". 
and it is said that salt masters and coal masters 
thus made serfs of many. In 1(30:3, there was a 
special " Act anent the Egiptians," which declared 
it " lesome " for anyone to put to death any gipsy, 
man, woman, or child, remaining in the country 
after a certain date. Moses Faa appealed against 
it as a loyal subject, and found a security in 
David, Earl of Crawford. This was in 1609, but 
in 1611 four of the Faas were tried at Edinburgh 
under the acts against the gipsies, and were con- 
victed and executed on the same day. Constables 
and justices of the peace were exhorted to put the 
law in force. Four gipsies, who could not find 
securities that they would leave the kingdom, 
were sentenced to be hanged in 1616, but were 
reprieved and probably released. In 1624, eight 
were executed on the Burgh Muir, but the 
women and children were simply exiled. In 
1636, a number were condemned at Haddington, 
the men to be hanged and the women to be 

drowned. Women who had children were to be 

12 



178 LEGAL LORE. 

scourged and branded in the face. In the latter 
half of the seventeenth century many were sent 
to the plantations in Virginia, Barbadoes, and 
Jamaica. 

Generally, however, the stringent laws were 
not stringently administered, and from fear or 
influence of some kind the gipsies often escaped. 

The British gipsies in our own day find that 
whilst the law is dealt out to them with perfect 
impartiality, the social pressure is decidedly 
against them. At such watering-places as 
Brighton and Blackpool — to name two extremes 
— they tell fortunes as though there were no 
statutes in that case made and provided. But 
it is not easy for them to keep on the road. The 
time cannot be far off when they must live with 
the gaujos * as house-dweller or perish from the 
land. 

* Gmijo is the name given by the gipsies to all strangers who are 
not of the Romany race. 



Commonwealth Xaw an& Xawpera. 

Edward Peacock, f.s.a. 

THE great Civil War as it is called, that is 
the struggle between Charles the First 
and his parliament, is memorable in many- 
respects. No student of modern history can 
dispense with some knowledge of it, and the 
more the better, for it was the result of many 
things which had happened in the far distant past, 
and we may safely say that the great French 
Revolution, which produced some good, and 
such an incalculable amount of evil would have 
run a far different course to that which it did, 
had not the political ideals of the men who took 
part in that terrible conflict been deeply influenced 
by what had taken place in England a century 
and a half before. 

As to the civil wars which had occurred in 
England in previous days, little need be said. 
They were either dynastic — the struggle of one 
man or one family against another — or they were 
religious revolts against the Tudors, by those 



180 LEGAL LORE. 

who vainly endeavoured to re-establish the old 
order of things in opposition to the will of the 
reigning monarch and the political servants 
who supported the throne. The struggle 
between Charles and the Long Parliament was 
far different from this. That religion in some 
degree entered into the conflict which was raging 
in men's mind long ere the storm burst it would 
be childish to deny, but it was not so much, 
except in the case of a very few fanatics, a conflict 
between different forms of faith as because a 
great number of the English gentry, and almost 
the whole of the mercantile class, which had then 
become a great power, felt that they had the best 
reasons for believing that it was the deliberate 
intention of the King and the desperate persons 
who advised him, to levy taxes without the 
consent of parliament. This may occasion- 
ally have been done in former reigns, but it is 
the opinion of most of those who have studied 
the subject in latter days, so far as we can see, 
without prejudice, that in every case it was 
illegal. Whether this be so or not, it must be 
remembered that times were in the days of Charles 
the First, far different from what his predecessors 
the Plantagenets and Tudors had known. A 



COMMONWEALTH LAW AND LAWYERS. 181 

great middle class had arisen partly by the 
division of property consequent <>n the dis- 
persion of the monastic lands, and partly also 

by the break up of the vast feudal estates, some of 
which had fallen into the hands of the Crown by 
confiscation, others been sold by their owners to 
pay for their own personal extravagence. 

Though murmurs had existed for many years, 
it was not until the memorable ship-money tax 
was proposed that affairs became really grave. 
Had England been threatened by an invasion 
such as the Spanish Armada, there can be no 
doubt that a mere illegality in the mode of 
levying taxes to meet the emergency would have 
been regarded as of little account, but in the 
present case there was no overwhelming need, 
and it must be borne in mind that to add to the 
national irritation the two first Stuarts were 
almost uniformally unsuccessful in their foreign 
wars. It is to Attorney General Noy that we 
owe the arbitrary ship-money tax. He was a 
dull, dry, legal antiquary of considerable ability, 
whose works, such as his Treatise concerning 
Triii/rrs and Estates; The Cow/pleat Lawyer; 
The Rights of the Grown, and others of a like 
character, are yet worth poring over by studious 



182 LEGAL LORE. 

persons. Such a man was well fitted for historical 
research, no one of his time could have edited 
and annotated The Year Books more efficiently, 
but he had no conception of the times in which 
he lived, the narrow legal lore which filled his 
mind produced sheer muddle-headedness, when 
called upon to confront an arbitrary king face to 
face with an indignant people. That there was 
less to be said against this form of royal taxation 
than any other that legal ingenuity could light 
upon must be admitted, but as events shewed the 
course he advised the king to take, was little 
short of madness. John Hampden, who repre- 
sented one of the oldest and most highly respected 
races of the English gentry — nobles as they would 
be called in any land but our own — set the example 
of refusing to pay this unjust levy. The trial 
lasted upwards of three weeks, and the men 
accounted most learned in the law were employed 
in the case. Sir John Bankes, the owner of 
Corfe Castle, Sir Edward Littleton, and others 
were for the King. Oliver Saint John and 
Mr. Holborn were for Hampden. Concerning 
Holborn little seems to be known, but Saint 
John made for himself a great name. His 
speeches are marvellously learned, shewing an 



COMMONWEALTH LAW AND LAWYERS. 183 

amount of reading which is simply wonderful 
when we call to mind that in those days all our 

national records were unprinted, and almost all of 
them without calendar or index of any sort. It 
must, however, he remembered that in those days 
lawyers of both branches of the profession were 
well acquainted not only with the language in 
which our records were written, but also with 
the hands employed at various periods, and the 
elaborate system of contraction used in repre- 
senting the words. 

A full report of this memorable trial is to be 
found in Rush worth's Historical Collections, 
volume ii. parts 1 and 2. Carlyle in his Letters 
detl Speeches of Oliver Cromwell, in the emphatic 
diction he was accustomed to use says that Saint 
John was " a dark, tough man of the toughness 
of leather,"* but he does not dwell on his great 
learning and general ability, as he ought to have 
done. That Saint John's heart was in his work 
for his client we are well assured. That from 
a legal point of view, Hampden was his only 
client, we well know, but as a matter of fact, it is 
no exaggeration to say that he represented the 
people of England. The decision went in favour 

* Edition L857, vol. i., p. 77. 



184 LEGAL LORE. 

of the crown, which was from the first a foregone 
conclusion. It was a legal victory, but like many 
lesser victories won before and since success was 
the sure road to ruin. The sum contended for 
was absurdly small — twenty shillings only — but 
on that pound piece hung all our liberties ; 
whether we were to continue a free people or 
whether we were to have our liberties niched 
away from us, as had already been the case in 
France and Spain. A sullen discontent brooded 
over the land, there was no rioting, but in hall 
and castle, country parsonage and bar-parlour, 
grave men were shaking their heads and asking 
what was to come next, all knew that a storm 
was brewing, the only question was when and 
where it would burst. Events changed rapidly, 
and Saint John though he took no very 
prominent part in the party struggles ere the 
war broke out, was undoubtedly the chief legal 
adviser of those who were in opposition to the 
faction which desired to make England a despotic 
monarchy. Such was the case during the war 
which ended in the tragic death of the king, and 
the establishment of a Republican form of 
o-overnment under the name of the Common- 
wealth. Saint John once again appears in a public 



COMMON WKALTH LAW AND LAWYERS. L83 

manner which indicates that he was ;i brave man 
who had no more fear of I lie pistol and dagger <>\ 
the assassin, than he had of the corrupt dealings 
of those who for a time, to their own imminent 
peril had misgoverned our country. This time 
we find him sent by the Commonwealth as 
ambassador to the seven United Provinces, then 
as now commonly called Holland, on account of 
the two provinces of north and south Holland, 
being by far the most influential states in that 
republic. The Dutch though republicans them- 
selves, had during the latter part of our Civil 
War shewn sympathy with the cause of the 
Koyalists. After the execution of the king, this 
feeling became naturally much intensified. On the 
other hand our newly established republic was for 
many reasons both of politics and religion very 
desirous of being on good terms with a sister 
commonwealth so very near at hand. To explain 
matters and perhaps to settle the heads of a 
definite treaty, the English government sent 
1 saac Doreslaus, or Doorslaer as their am- 
bassador. He was by birth a Dutchman and a 
very learned lawyer. He had come to this 
country before, the war broke out in L6 l_. He 
was then made, probably through the influence of 



186 LEGAL LORE. 

his friend Sir Henry Mildmay, "Advocate of the 
Army."* His great knowledge of Civil Law, 
which had been much neglected in England in 
times subsequent to the Reformation, rendered 
him of great service in his new position of Judge 
Advocate of the Army. For the same reason he 
soon afterwards was created one of the judges of 
the Admiralty Court. He became especially 
hateful to the Royalists from his having assisted 
in preparing the charges against Charles the 
First. In May, 1649, he sailed for Holland as 
Envoy of the English government to the Hague. 
He had only spent a short time there, when, 
while at supper in the Witte Zwaan (White 
Swan) Inn, some five or six ruffians with their 
faces hidden by masks, rushed into the room 
where he, in company with eleven other guests 
were sitting. Two of these wretches made a 
murderous attack on a Dutch gentleman of the 
company, mistaking him for Dorislaus. Finding 
out their error they set upon the Envoy and slew 
him with many wounds, crying out as they did 
so, "Thus dies one of the King's judges." The 
leader of this execrable gang was Col. Walter 

* Peacock. Army Lists of Roundheads and Cavaliers, 2nd edit., 
1874, p. 21. 



COMMONWEALTH LAW AND LAWYERS. 1-7 

Whitford, son of Walter Whitford, D.I). The 
murderer received a pension for this "generous 
action" * after the Restoration. 

The English Parliament gave their faithful 
servant a magnificent funeral in Westminster 
Abbey, June 14, 1049, but when Charles the 
Second ascended the throne, his body was 
disturbed. His dust rests alon g with that of 
Admiral Blake and other patriots in a pit 
somewhere in Saint Margaret's churchyard, t 
Dorislaus, though a foreigner, ought to rank 
among our great English lawyers, for his services 
were devoted entirely to his adopted country. 
Whatever our opinions may be as to those 
differences which were the forerunners of so much 
bloodshed and crime, we must bear in mind that 
many of the foremost men on both sides were 
actuated by the highest principles of honour. 
The study of Canon Law had been prohibited in 
the preceding century, and the Civil Law with 
which it has so intimate a connection, though not 
made contraband, was so much discouraged that 
it is no exaggeration to say that the knowledge 
of it was confined to a very few. Selden, whose 

* Wood, Athenae Oxon, sub nom. 

t John Loden (iollpried's Ki-oni/ck, vol. iv. , p. 4,14. Van der Aa, 
Bioijraphisch Woordenbork, sub voce. 



188 LEGAL LORE. 

wide grasp of mind took in almost every branch 
of learning as it was known in his day, is the 
only English lawyer we can think of who had 
mastered these two vast subjects. This is the 
more remarkable as he was of humble parentage ; 
the son of a wandering minstrel it is said, but 
from the first his passion for learning over- 
mastered all difficulties. It must, however, be 
borne in mind that according to the custom of 
those times when his abilities became known, he 
met with more than one generous patron. 

We must for a moment return to Saint John 
who was selected in 1652, to represent his 
country in Holland. There was not, as there is 
now a trained body of men devoted to the 
diplomatic service. The reasons why Saint John 
was chosen for this important office are not clear. 
He was a great and widely read lawyer, who we 
apprehend was trusted with this difficult mission, 
not only because the government were assured of 
his probity, but because the relations between 
Holland and this country depended on many 
subtile antiquarian details which a mere student 
of the laws as they were then, would have been 
unable to unravel. The basis of the sea codes by 
which the various nations of Christendom pro- 



COMMONWEALTH LAW AND LAWYERS. 189 

fessed to be ruled, was the Laws of Oleron 
(Leges Uliarences). They were promulgated by 
Richard the First of England, on an island in the 
Bay of Acquitaine. How far they were ever 
suited for their purpose may be questioned, but 
it is certain that as centuries rolled on, they had 
though often quoted, ceased to have any 
restraining power, and as a consequence Spain, 
England, Holland, and other powers were guilty 
of constant acts of w r hat we should now call 
piracy. A lasting treaty with Holland, could 
Saint John achieve it, would have been of 
immense advantage, but the Dutch were in no 
mood for an alliance on equal terms. It was a 
brave thing for Saint John to undertake so 
arduous a mission, for he not only run the risk of 
ignominous failure, but also was in no little 
danger from the savage desperadoes who thought 
they did the cause of their exiled master service 
by murdering the agents of the English govern- 
ment. When Saint John arrived at the Hague he 
was put off by slow and evasive answers, which 
soon shewed to him not only that his own time 
was being wasted, but what was to him of far 
more account, the honour of his country was 
being played with. He gave a proud, short, 



190 LEGAL LORE. 

emphatic reply to the Dutch sophistries, and at 
once returned home again, to cause the celebrated 
Navigation Act to be passed, forbidding any goods 
to be imported into England, except in English 
ships, or in the ships of the country where the 
articles were produced. This was well-nigh ruin 
to the trade of the Dutch, who were then the 
great carriers of the world. 

In no sketch however brief of the lawyers of 
this disturbed time, can the name of William 
Prynne be entirely passed over, and yet it is not 
as a lawyer that his name has become memorable. 
Had he been a mere barrister at law he would 
long since have been forgotten, but he was an 
enthusiastic puritan of the presbyterian order, 
and a no less enthusiastic antiquary. He had 
probably read as many old records as Saint John 
or Selden, but had by no means their faculty of 
turning them to good account. He first comes 
prominently before us as attacking the amuse- 
ments of the court, especially theatrical enter- 
tainments. For this he was proceeded against 
in the Star Chamber, sentenced to pay five 
thousand pounds and have his ears cut off; for 
an attack on episcopacy he was fined another 
five thousand pounds and sentenced once more to 



COMMONWEALTH LAW AND LAWYERS. 191 

have his ears cut off. He afterwards bore a 
prominent part in the trial of Archbishop Laud. 
All along he continued to pour forth a deluge of 
pamphlets. He attacked Cromwell with such 
boldness, that the Protector felt called upon to 
imprison him in Dunster Castle, where however, 
his confinement was of a most easy character. 
He is said while there to have amused himself by 
arranging the Lutterell Charters, for which that 
noble home is famous. He took the side of 
Charles the Second at the Restoration, and as a 
reward was made keeper of the records in the 
Tower, a post for which he was peculiarly well 
fitted. 

There is probably nothing which distinguishes 
the periods of the Commonwealth and the 
Protectorate more markedly from other times of 
successful insurrection, than the very slight 
alteration which the new powers introduced into 
the laws of England. The monarchy, it is true, 
was swept away, but the judges went on circuit ; 
the courts of Chancery and common-law sat 
as usual, the Lords of Manors held their 
courts, and the justices of peace discharged their 
various functions as if they had been the times of 
profoundest peace. No confiscations took place, 



192 LEGAL LOKE. 

as had been the case in the reign of Henry the 
Eighth and his successor, except in cases where 
the owners had been engaged in what the state 
regarded as rebellion, and even with regard to 
those who had fought in what is known as the 
first war, almost everyone was let off by a heavy 
fine. A list of these sufferers may be seen in A 
Catalogue of the lords Knights and Gentlemen 
that have compounded for their Estates (London 
Printed for Thomas Dring at the Signe of the 
George in Fleet Street, neare Clifford's Inne, 
1655.) The book is imperfect and very in- 
accurate. This is not of much consequence 
however, as the documents from which it is 
compiled known as The Royalist Composition 
Pap>ers, are preserved in the record office, and 
are open to all enquirers. Those who madly 
engaged in what is known as the second war, had 
their estates confiscated by three acts of parlia- 
ment of the years 1651 and 1652. These were 
reprinted and indexed for the Index Society in 
1879. These latter had their estates given back 
to themselves or their heirs on the Restoration. 
It does not seem that those who were fined, 
except in a very few cases had any return made 
to them. There have been few civil wars ancient 



COMMONWEALTH LAW AND LAWYER8. 193 

or modern wherein the unsuccessful have been 
so tenderly treated. Yet sufferings of the 
poorer classes among the Royalists must have 
been very great. Next to the arbitrary conduct 
of the King and those immediately about 
his person, was the provocation which the 
Parliamentarians thought that the established 
church had given, firstly because many of 
the bishops and clergy maintained an extreme 
theory of the Divine Right of Kings, which 
is said first to have been taught in this 
country by Archbishop Cranmer. If this 
opinion were really accepted as more than 
a mere figure of flattering oratory, it made 
those who complied with it mere slaves to 
the sovereign, however tyrannical or wicked 
he might prove himself. The second ground 
of resentment was that they thought Arch- 
bishop Laud and many of the bishops and 
clergy, concealed Roman Catholics, "disguised 
Papists," as the common expression ran. We 
do not believe this charge with regard to 
Laud or most of the others so rashly accused. 
We are quite sure it was not so if their writings 
are to be taken as a test of their feelings. 

Whatever may have been the truth, there is no 

13 



194 LEGAL LORE. 

doubt that even the more tolerant of what may 
be called the low-church party feared the worst. 
As early as 11th February, 1629, Oliver 
Cromwell, who was then member for Hunt- 
ingdon, made a speech in which he said, " He 
had heard by relation from one Dr. Beard . . . 
that Dr. Alablaster had preached flat Popery at 
Paul's Cross, and that the Bishop of Winchester 
(Dr. Neale), had commanded him as his 
Diocesan, he should preach nothing to the 
contrary."* So inflamed, however, were men's 
minds that as soon as the Parliamentary party 
was strong enough, Laud was indicted for high 
treason and beheaded. 

One of the first works of the Parliament when 
strong enough, was to abolish the Book of 
Common Prayer, and put a new compilation 
called the Directory in its place. The use of the 
Prayer Book was forbidden not only in public 
offices of religion, but in private houses also. 
For the first offence five pounds was to be levied, 
for the second ten, and for the third the 
delinquent was to suffer one year's imprison- 
ment, t Whether this stringent law was 



* Carlyle, Letters and Speeches of Oliver Cromwell, vol. i. , p. 50. 
t Henry Scobell, Acts and Ordinances, 1645, chapter 57. 



COMMONWEALTH LAW AND LAWYERS. 195 

rigorously inforced we cannot tell. Probably in 
many cases the local justices would bo far more 
lenient to the clergy who were their neighbours, 
that would be the legislators at Westminster, 
whose passions were fanned by listening to the 
popular preachers. Not content with interfering 
with the service-book, various acts were passed 
relating to " Scandalous, Ignorant, and In- 
sufficient ministers." That the commissioners 
who put these acts in force removed some evil 
persons we do not doubt, but if John Walker's 
attempt towards recovering an account of the 
number and sufferings of the Clergy of the Church 
of England, who were sequestered . . . in 
the Grand Rebellion, be not very grossly 
exaggerated, which we see no reason, to believe, 
many innocent persons must have had very 
hard treatment. 

The marriage laws of England were in a vague 
and unsatisfactory state from the reign of 
Edward the Sixth, until the Commonwealth 
time. An attempt was made in 1G53 to alter 
them. Banns were to be published either at 
Church or in the nearest market town on three 
market days, after this the marriage was to take 
place before a justice of peace. Many nit lies of 



196 LEGAL LORE. 

marriages of this kind are to be found in our 
parochial registers. English was made the 
language of the law in 1650, but Latin was 
restored to the place of honour it had so long 
held, when the Restoration took place. 



(tocMfigbting in Scotland. 

IT is highly probable that thu Romans 
introduced cock-fighting into this country. 
It is generally believed that the sport was made 
popular by Theniistocles. On one occasion he 
saw two cocks fighting, and their courage greatly 
impressed him, and lie felt such exhibitions 
might teach a useful lesson of bravery to those 
who witnessed them. Periodical contests were 
exhibited, and were popular amongst the Greeks 
and Romans and with other nations, and were much 
appreciated by a large section of the inhabitants 
of this land. In "Bygone England," by William 
Andrews, f.u.h.s. (London 1892), will be found a 
long account of " Fighting-Cocks in Schools." 
One of the earliest accounts of the pastime in 
England, says Mr. Andrews, occurs in a ''Des- 
cription of the City of London," by William 
Fitzstephen, who wrote in the reign of Henry 
II., and died in the year 1191. He records that 
it was the annual custom on Shrove Tuesday for 
the boys to bring their game cocks to the schools, 



198 LEGAL LORE 

to turn the schoolrooms into cockpits, the 
masters and pupils spending the morning 
witnessing the birds fighting. 

Old town accounts contain many references to 
this custom, for example at Congleton, Cheshire, 
is the following item : — 

" 1601. Payd John Wagge for dressy nge 
the schoolhouse at the great 
[Congleton] cockfyghte." - - £0 0s. 4d. 

Hugh Miller, the famous geologist, who was 
born in the year 1802, in his popular volume 
" My Schools and Schoolmasters," gives a graphic 
account of that amusement in the Cromarty 
grammar school where he received his education. 
"The school," says Miller, "like almost all other 
grammar schools of the period in Scotland, had 
its yearly cock-fight, preceded by two holidays 
and a half, during which the boys occupied 
themselves in collecting and bringing up the 
cocks. And such was the array of fighting 
birds mustered on the occasion, that the day of 
the festival from morning till night used to be 
spent in fighting out the battle. For weeks after 
it had passed, the school floor continued to retain 
its deeply stained blotches of blood, and the boys 
would be full of exciting narratives regarding the 



COCK-FIGHTING [N SCOTLAND. 199 

glories of gallant birds who had continued to 

fight until their eyes had been pecked out ; or 
who in the moment of victory, had dropped dead 

in the middle of the cock-pit." Miller at some 
length denounces the cruel sport. 

In England cock-fighting is prohibited by 

statute 1.5 and 13 Vict. 3, 9'J, under which every 
person who shall in any maimer encourage, aid, 
or assist at the fighting or baiting of any bull, 
bear, badger, dog, cock, or other animal, shall 
forfeit and pay a penalty not exceeding £o for 
every such offence. In Scotland it was not illegal 
until quite recently. An act was passed in 1850 
known as the "Cruelty to Animals (Scotland) 
Act," but the wording of the statute was 
found not to include the game or fighting-cock. 
The sport became popular and the law could not 
touch those that took part in the cruel amuse- 
ment. It was felt to be a national scandal, and to 
prevent it, a short statute was passed on 30th 
May, 1895, whereby the definition of the word 
animal in the 11th section was amended by 
adding at the end thereof the words "or any 
game or fighting-cock, or other domestic fowl or 
bird." 

Mr. Robert Bird, the genial and gifted author 



200 LEGAL LORE. 

of "Law Lyrics," a volume which has been 
warmly welcomed by the public and the press, 
has made cock-fighting the subject of a clever 
poem. 

COCKIELEERIE LAW. 

By Robert Bird. 

In Full Court, Edinburgh, 2Srd December, 1892. 

Six legal wigs, like well-plumed tappit hens, 

Sat brooding o'er a pair of lighting cocks ; 

While lesser wigs, begowned, and brief in hand, 

Declaimed in flowing periods, of the fray, 

Like ancient bards, that wanted but their harps, 

Their wallets, ballad verse, and song, to make 

The very goose quills, sleeping on the bench, 

Awake ! take sides and spill each other's ink. 

And as they spake, a legal fog dropt down 

Upon the learned six, and each beheld, 

In green mirage, born of the cloud of words, 

Two cocks, Game cocks, crop-combed, erect, and slim, 

With feathers dipped in crimson, gold, and blue, 

Frill-necked, with trailing wings and spurs of steel, 

That on each other flew and pecked and spurred, 

And spurred and pecked again, until the Court 

Reeked like a cock-pit, and the crowd of wigs,— 

Of boyish idle wigs, — -took bonnet shapes 

That hooded scowling brows of cursing men, 

Who laid their bets on this bird, and on that, 

As, with quick panting breath and beaks agape, 

They pranced, flew, fought, until the oaken bar 

Seemed spattered o'er with feathers and cock blood 

At length one cock the other overthrew, 



cock FIGHTING in Scotland. 201 

Ami struck quick spurs into his quivering breast 
Until he died ; then he, with croaking crow, 
Fell, wounded, bleeding, dying by his side 

Amid the applauding cheers of thirsty throats, 
Soon to be slaked with liquid bets, and so 
The hat tie ended, but the fog remained. 

A rustling of silk plumes upon the bench, 
Five wigs bent low, and thus great Solon spake — 

" 'Twas in Kilharehan that this tight was fought, 
And straight (he men who prompted it were ta'en, 
And jailed, and tried, and sentenced for the same ; 
But now they seek release, and this their plea, 
That in the gracious Act which says that men 
Shall not treat brutes and beasts with cruelty, 
The name of " Cock" is absent ; therefore they 
Claim full exemption for their brutish deeds, 
And we, vicegerents of our gentle Queen, 
With spectacle on nose, must well explore 
This vital point in Cockieleerie-hur. 

The illumined page of history reveals 
Cock-tighting as an ancient royal sport. 
The Early Greeks and Romans in their day 
Found pastime sweet in setting cock on cock ; 
The sage Themistocles took keen delight 
In battling fowls ; while glorious Caesar, too, 
Loved much to back his bird ; and, furthermore, 
Man- Antony's gamecocks did always lose 
When pitted against Cajsar's fiercer breed. 
King Henry VIII., of sainted memory ! 
At Whitehall had a special cock-pit built, 
Wherein his royal birds made lively sport 
For gentle dames and all his merry knights. 
The most accomplished scholar of his day, 



202 LEGAL LORE. 

Squire Roger Ascham, tutor to Queen Bess, 
Much as he loved his books, loved cocks the more, 
And loved them most when victors in the fight. 
And last of all, that great and noble Duke, 
The conqueror of Blenheim, in game birds 
Found something that reminded him of self ; 
And thus we see the fighting instinct strong 
In cocks, and other nobles of past time. 

" Game cocks, we find, from earliest Cockereldom, 
Delight in war, as dogs to bark and bite, 
And raining blows upon each other's ribs 
Do best fulfil their part of nature's plan, 
Which built them slim and bade them love the fray ; 
And while we hope no preference here to show, — 
'Tis open question, whether rearing fowls 
To wring their necks, or match them in the pit, 
Does more exalt the brute or sink the man. 

" But here, the cocks were armed with spurs of steel, 
And 'tis a subtle matter, whether they 
With iron shod, or spurred with native horn, 
Do deal the deadliest blows in angry fray ; 
And, while we have our own opinion strong ! 
'Tis not within our province to pronounce. 

" If it be wrong with steel to prick a fowl, 
What of the spurs with which hard riders goad 
The bleeding sides of horses in the race, 
Or in the steeplechase, or country hunt 1 
And what of hares in coursing run to death 1 
Of quivering foxes torn by yelling hounds 1 
Of wheeling pigeons slaughtered for a prize ? 
We make no mention of the common use, 
Of otter hunting, grouse and pheasant drives. 



COCK-FIGHT INC IN SCOTLAND. 203 

Ami of the sport termed noble, where the 
Is forced upon the guns that lay him low. 
No doubt, t w<> blacks can never make one white, 

Nor multiplying Macks turn black to grey ; 
But if to brutalise mankind be thought amiss, 
Then there are other ways, than fighting cocks. 

"Still that's beside our purpose, which is this — 
To scan the statute, microscope in hand, 
And note if in its sweep humane, we see 
A roosting place for fighting chanticleer. 
And there we find, or rather fail to find, 
The name of "Cock " among the saving list 
' >f nineteen beasts protected by the law, 
Though thus the list concludes, "and other kinds 
0/ animals domestic" or like words. 
Are we to find Game Cocks, domestic fowls 1 
Are we to hold that birds, are animals ? 
Our view is quite the contrary, or else 
There's not a beast, bird, fish, or insect but 
The term "domestic" would to them apply, 
And make it penal e'en to slay a louse. 

" And while, in other parts of this same Act, 
We find " Cock " followed by the general phrase, 
" Or other kind of animal" we hold 
It bears not on the matter now in hand, 
But only serves to show that Parliament, 
When brooding, clucking, hen-like, o'er this Act. 
Had Cocks well in their eye, and plainly did, 
Of purpose full, omit them from the list ; 
And while bear-fights, buli-fights, dog-fights, and all 
Vile sports and brutish cruelty to beasts, 
The spirit and the letter of the law 
Do cpjite forbid, unanimous ive hold 



204 LEGAL LORE. 

Cock-fighting is a lawful use of Cocks, 
And finding so we liberate these men. 

" It will be said, this Statute has been read 
Reversely in our sister England, where 
It is the Charter of proud Chanticleer ; 
But what of that 1 It alters not our mind ! 
But only shews, that they, of feebler clay, 
Stick not at trifles, so the end be good, 
And let the heart o'erbeat the legal mind ; 
While we, of sterner stuff, fail not to find 
Motes in the sunshine of their simple wits, 
And gnats to strain out of their cups of wine ; 
For in the nice accomplishment and use 
Of splitting hairs, and weighing feathers small, 
Of riddling wisdom from a peck of words, 
We are more skilled, more subtle, more profound 
Than our legal brethren of the South." 

Whereat five horse-hair wigs again bowed down 
In low obeisance to the mighty sage, 
And straight the Court was cleared of cocks and men. 



Jfatal Xlnfcs. 

By Ernest H. Rann. 

A CONSIDERATION of the detection of 
crime brings forcibly to the mind the fact 
that officers of law have frequently to depend for 
success on the accidental discovery of the most 
trifling items and incidents. Conversely the 
criminal section of the community who prey on 
the weakness or folly of their neighbours have to 
fear not only a knowledge of their principal 
movements, but the discovery of the connecting- 
link which shall complete the chain of evidence 
against them. The deepest laid plot, the most 
cunning scheme, contains a flaw which may be 
fatal to their operations, to their liberty, and 
even their life, a flaw which no amount of 
previous examination may detect, a weakness 
which can rarely be adequately guarded against. 
Justice and the vindication of the law, therefore, 
depend largely on a proper regard being paid to 
minor occurrences, which at first sight would 
seem to have do bearing whatever on the 



206 LEGAL LORE. 

particular case under consideration. The history 
of crime contains numberless instances where the 
criminal has been brought to justice through one 
or other of these causes — the presence of par- 
ticular hairs or threads on his clothing or on 
the weapon used, the direction of certain cuts on 
the body of his victim, the possession of trifling 
articles. At other times dreams have played no 
inconsiderable part in the vindication of the 
law, which has also been aided by supernatural 
visitants, or by the self-consciousness of the 
criminal. 

It would be impossible in a short article like 
the present to offer a full list of cases of this 
description, but a few typical instances may be 
taken with the object of showing how crimes, 
long- hidden, have been discovered in the most 
remarkable manner. Probably the best example 
occurred at Augsburg, in 1821. A woman 
named Maria Anna Holzmann lived in a house 
in the town belonging to one Sticht. Her 
means only permitted her to occupy a few of the 
rooms, and the remaining parts of the premises 
were let to lodgers, among whom were George 
Rauschmaier and Joseph Steiner. On Good 
Friday, April 20th, Holzmann disappeared. 



FATAL LINKS. 207 

She had not given notice of her intended 

departure, and nothing was known of it until 
some days later when Rauschmaier and Steineralso 
left the premises, saying that their landlady had 
previously quitted the house, leaving them in 
possession of her keys. This information, how- 
ever, was not given to the police until May 
17th. In the meantime Holzmann's relatives 
had become apprehensive of her safety, and being 
reluctantly forced to the conclusion that foul play 
had befallen her, they decided to take an inventory 
of her property, as it was known that, although 
in humble circumstances, the woman had managed 
by care and economy to amass considerable 
wealth. It was found, however, that the greater 
part of her money and other valuables were 
missing. 

In spite of active enquiries no further action of 
importance in the matter was possible until the 
following January, when Theresa Belter, a washer- 
woman who also lived in the house, announced 
that she had found a thigh of a human body 
hidden in the loft. Further investigations re- 
vealed a leg and the other thigh in a heap of 
rubbish in a corner of the room, and between the 
chimney and the roof, a trunk without head or 



208 LEGAL LORE. 

limbs was discovered. An old gown and a petti- 
coat, identified as portions of the dress of Holz- 
mann, were also brought to light, while search in 
Rauschmaier's room disclosed other parts of a 
woman's body. The head was missing, but when 
news of the unmistakeable crime was noised abroad, 
a neighbouring manufacturer stated that during the 
preceding year he had found a skull, still bearing 
portions of flesh and hair, in his factory weir, but 
had not considered the " find " worthy of preser- 
vation. 

There could be no doubt that Maria Anna 
Holzmann had been murdered, and the whole 
machinery of the law was put in motion to bring 
the criminals to justice. Suspicion fastened itself 
strongly upon the two men, Rauschmaier and 
Steiner, but actual evidence against them, or 
indeed against anyone, was of the scantiest de- 
scription until the separate pieces of the woman's 
body were placed together. While the left arm 
was being examined, a brass ring fell out of the 
bend of the elbow, whence it had evidently slipped 
from the finger of the murderer. Whose was the 
ring ? then became the all important question. 
Rauschmaier was arrested and confessed that he 
had stolen and pawned several articles of Holz- 



FATAL LINKS 209 

mann's property, but he sternly denied having 
committed the murder. The property, including 

a pair of ear-rings, had been recovered from the 
pawnbroker's, and these, with the brass ring, were 
laid before the accused. He had not wit enough 
to discern the trap laid for him. and immediately 
on seeing the ornaments, he exclaimed "The ear- 
rings and the gold and brass rings are mine. The 
brass ring I always wore until within four or five 
weeks after Easter, since when I have worn gold 
ones. The brass ring fits the little finger of my left 
hand ; it slips on and off with ease." This foolish 
statement, and the place of the discovery of the 
ring, proved conclusively that Rauschmaier was 
the murderer of the unfortunate Holzmann. 
Subsequently he made full confession of the 
crime, stating that the brass ring must have 
slipped off while he was cutting up the bod v. 
He paid the penalty of his sins with death. 

The " Greenacre " case, which occurred in 1836, 
was similar to the foregoing in many of its details. 
In that year, portions of the mutilated trunk of 
an old woman named Brown were found in a house 
in Edge ware Road, wrapped in old rags and 
sacking. Subsequently the head was discovered 

in Regent's Canal, and the limbs in a drain in 

11 



210 LEGAL LORE. 

the neighbourhood of Caraberwell. Comparison 
between the various portions left no doubt as to 
the identity of the deceased, and James Green- 
acre, whom Brown intended to marry, and to 
whose house she had gone with all her property, 
was accused of the murder. A woman named 
Gale with whom he lived was also charged with 
complicity in the deed. Once more suspicion, 
however strong, was insufficient to bring the 
crime rio-ht home to the accused, but the dis- 
covery, among Greenacre's property, of some rags 
corresponding with the pieces covering the mu- 
tilated remains, together with a few articles 
belonging to Brown, turned suspicion into actual 
proof. Greenacre was condemned to death, and 
his companion sentenced to transportation for life. 
The murder of William Begbie, at Edinburgh, is 
a remarkable case of the manner in which the 
author of a crime may remain long hidden, and 
only then be discovered by accident. Begbie was 
a bank porter, and on November 30th, 1806, he 
was employed to carry a parcel of notes, worth 
about £4,000, to one of the bank's customers. 
On his way he had to pass through a narrow, 
dark, and tortuous entry, and there he was 
brutally murdered and the notes were stolen. 



FATAL LINKS. 211 

Although a knife, of a particular pattern, was lefl 

in the body, the murderer remained at large, and 
qo elue to the terrible crime could be unearthed. 

Nine months later the bundle of notes, untouched, 
waa found hidden in a wall, but long years passed 
before the mystery was completely solved. In 
I S-Ji* a Bow St reel runnel- named I)eiio\an, while 
visiting Leith, chanced to fall into conversation 
with a sailor lately returned from captivity among 
the French. Speaking of old times the mariner 
accidentally mentioned that coming ashore one 
morning he had noticed a man like William Beg- 
bie, followed by a person dressed in black and of 
respectable demeanour. He lost sight of them 
for a few moments, but later on he was surprised 
to see the man in black rush out of the narrow 
entry with a bundle under his arm. On the 
next day he heard of the murder, and feeling con- 
fidant that he could throw light on the crime, he 
informed the mate of his vessel of what he had 
seen. Permission to go ashore was, however, 
refused. The vessel sailed, was captured by the 
French, and the sailor witness did not recover his 
liberty for fifteen years. Denovan set to work with 
this important clue, and enquiries proved that the 
man in black was no other than a notorious 



212 LEGAL LORE. 

criminal named Mackoul, who had lived in Edin- 
burgh in 1806. The law had claimed its own, 
however, previous to the sailor's disclosures. In 
1820 Mackoul had suffered death for robbery ; 
still, though he was beyond punishment for his 
old crime in Edinburgh, it was satisfactory to 
know that the mystery of the bank porter's death 
had at last been solved. 

Probably the most notorious case in English 
annals of murder discovered by extraordinary 
means is that of the killing of Daniel Clarke by 
Eugene Aram. The main facts of the case are so 
well known that it is scarcely necessary to enter 
into them here. Aram, assisted by a man named 
Houseman, it may be remembered, murdered 
Clarke for the sake of his wealth, and hid the body 
in St Robert's cave, near Knaresborough. There 
it remained from 1745 till 1759, when it was 
accidentally discovered by a labourer. Close ex- 
amination led to the conclusion that the body, or 
rather the skeleton, was that of a murdered man, 
and when the mysterious and almost forgotten 
disappearance of Clarke was remembered, steps 
were taken to arrest his quondam companions 
Aram and Houseman. The latter turned king's 
evidence, and on his testimony Aram was ex- 



FATAL LINKS. 213 

ecuted, leaving a shady memory to be invested 
with undeserved romance by a pout and a novelist 

of the following century. 

Researches into modern criminal records also 
reveal a number of interesting cases similar to 
those cited above. A few years ago a Pole 
named Lipski was convicted in London of the 
murder of a woman. Strenuous efforts were 
made to obtain a pardon, on the ground that he 
had been wrongly convicted, but the solitary fact 
on which the Home Secretary decided to allow the 
law to take its course was that the door of the room 
had been locked in which the woman was found 
murdered, with Lipski himself hiding under the 
bed. And in tracing the Muswell Hill murder 
to its authors, the police were aided in their en- 
deavours by the discovery of a common lantern 
which had been left on the scene of the crime. 
It was supposed to belong to a relative of one of 
the suspected men, and in order to verify this im- 
portant link in the chain of evidence, a youthful 
agent of the detective force was employed to spin 
his top in front of the supposed owner's house, 
engage him in conversation if possible, and obtain 
evidence of the ownership of the lantern. The 
result was completely satisfactory ; the suspicions 



•214 LEGAL LORE. 

of the police were confirmed, and the murderers 
brought to justice, mainly, it may be said, through 
the lantern's silent testimony. 

Another case of murder, which occurred in 
1806, was brought home in a singular and com- 
plete manner. A Deptford gentleman, named 
Blight, was killed by a pistol-shot, and Sir Astley 
Cooper, from an examination of the victim's 
wounds and of the place of his murder, arrived at 
the opinion that none other than a left-handed 
man could have committed the crime. Acting 
on this conclusion the police arrested one Patch, 
who had been seen in the locality. When Patch 
was asked to hold up his hand to plead the indict- 
ment, he put up his left hand. The jury brought 
in a verdict of guilty, and before execution the 
criminal made full confession of his terrible deed. 

Dreams also have played no inconsiderable 
part in the discovery of crime. We have not 
space in the present article to notice all trials 
where dream-evidence has been offered to the 
court ; a brief notice of those cases in which it 
has had an important bearing must suffice. The 
most notorious instance, of course, is that of 
Maria Martin, the victim of the Red Barn 
tragedy. After her departure from home, in 



FATAL LINKS. 215 

order, as was supposed, to marry William Corder, 
nothing, either by way of letters, or otherwise, 
was heard of her, except brief mention in Corder's 
communications. Nearly twelve months passed, 

when Mrs. Marl in was startled and horrified by 
dreaming, on three successive nights, that Maria 
had been murdered and buried in the Ked Barn. 
After much persuasion her husband and son 
consented to search the place, and there, in the 
exact spol indicated by Mrs. Martin as having 
been pointed out in her dreams, was found the 
body of her missing daughter, buried under the 
flooring in a sack. 

Mention may also be made of the case of 
I'liek Maguire, an Irish farmer, whose wife 
dreamed that her husband had been murdered 
by a disappointed lover of hers, named O'Flanagan. 
A few days later an idiot boy. who lived in the 
house, was heard shrieking in terror : " Shanus 
dhu more O'Flanagan (big black James) has 
kilt Ulick, and buried him under the new 
ditch at the back of the garden. I dhramed it 
last night, evry wurrd av it." The singular 
coincidence of the lad's dream with her own 
excited Mrs. Maguire's suspicions to the utmost, 
especially as her husband was away from home at 



216 LEGAL LORE. 

the time. She ordered a search at the particular 
spot mentioned by the idiot boy, and there, to her 
horror, was found the body of Ulick, with the skull 
cleft in twain. Immediate request was made for 
"biff black James." He had absconded and 

o 

enlisted in the army, but on being charged with 
the crime he admitted his guilt, and suffered the 
penalty of death. 

In one instance, by far the most wonderful of 
its kind, the victim of a murder has appeared in 
successive dreams, and played the part of 
detective with admirable skill and effectiveness. 
A Grub Street victualler, named Stockton, was 
murdered towards the close of the seventeenth 
century. Three men were suspected of the 
crime, but neither of them could be discovered, 
and the affair seemed likely to become one of the 
mysteries of crime, when a Mrs. Greenwood 
dreamed that Stockton, who had been a neighbour 
during life, had taken her to a house in Thomas 
Street, telling her that his murderer was inside. 
On going to the house in person Mrs. Greenwood 
was told that Maynard, one of the suspected 
men, had gone abroad. The following night 
Stockton appeared and showed her the features 
of Maynard, and gave her such particulars of the 



FATAL LINKS 217 

man's habits and resorts that he was captured 
within a few hours. From Maynard the names 
of his partners in guilt, Beve] and Marsh, were 
obtained, hut again the authorities were at fault, 
until Stockton indicated the house where Marsh 
visited, and the yard (afterwards discovered to be 
the yard of Marshalsea Prison) in which Beve] 
would be found. From a crowd of other prisoners 
Mrs. (iivrnwood identified Bevel, and shortly 
afterwards, through her strange testimony. 
Marsh also was arrested. Then, as an old 
chronicle of the case affirms, Stockton appeared 
for the last time, and thanked her for her good 
offices. We have given the story as it has come 
down through two centuries; a whole body of 
clergymen attested its accuracy at the time, and 
present-day enquirers would have great difficulty, 
we imagine, in conclusively proving that the 
murder of Stockton was traced by other and less 
extraordinary means. 

Closely allied to the evidence furnished by 
dieai ns, and indeed, as in the foregoing case of 
Stockton, sometimes barely distinguishable from 
it, is that offered by ghosts, actually seen by 
witnesses in a waking, but hallucinatory, state. 
Such evidence would scarcely be admissable in 



218 LEGAL LORE. 

modern courts of law, but in past ages it was 
freely employed, and has served to bring 
criminals to the ^allows. It must be admitted 
that the other testimony against the accused was 
strong, but in numerous instances ghosts have 
been instrumental in putting the officials on to a 
clue or track which they would most likely never 
have discovered by their own unaided efforts. 
In his " History of Durham," Surtees mentions 
the case of Anne Walker, who lived in 1630, and 
had become engaged in an intrigue with a 
relative of the same name. The girl was placed 
for a time under the care of a friend in a neigh- 
bouring village, but one night she was removed 
from there by Walker and a man named 
Sharp. From that date no one saw her alive. 
A fortnight afterwards, Graime, a fuller, was 
terrified by the appearance in his mill of Anne 
Walker's ghost, "dishevelled, blood-stained, and 
with five wounds in her head." She told him 
the whole story of her murder ; how Sharp had 
killed her with a collier's pick, and then thrown 
her body down a shaft. Graime hesitated to use 
this strangely acquired information. Apparently 
incensed at his delay, Anne Walker repeatedly 
appeared, and in order to rid himself of these 



FATAL LINKS. 219 

visitations, the frightened fuller al length 
acquainted the authorities with his story. Im- 
mediate enquiry confirmed his statements in 
every particular. Walker and Sharp were 
arrested, charged with the murder of the girl, 
found guilty, and executed, though to the last 
they maintained their innocence of the crime. 

A case, somewhat similar, has occurred even in 
the present century, and in matter-of-fact, new 
world Australia, where visions might be expected 
to be few and far between. The friends of a well-to- 
do settler near Sydney were surprised to hear from 
his steward that he had been suddenly called 
to England on important legal business. Ke- 
meinbering the vast wealth of the man, and 
the necessity for precautions in regard to it, they 
accepted the statement, and also recognised the 
steward's control of the estate during his master's 
absence. What was the astonishment, however, of 
one of these friends, when on riding over the 
estate he saw the owner, whom he thought to be 
in England, sitting on a neighbouring stile ? 
Tiie figure looked at him silently and sorrowfully, 
then walked towards a pond and disappeared. 
Drags were procured and the water searched, 
when the body of the absent owner was brought 



220 LEGAL LORE. 

to the surface. Confronted with the corpse the 
steward confessed that he had murdered his 
master at the identical stile on which the ghost 
had sat. 

Pierre le Loyer, a French writer on law and 
the supernatural, mentions in his " Discours des 
Spectres," the case of a man who mysteriously 
vanished, having, as was supposed, been murdered. 
A few weeks later the ghost of the absentee 
appeared to his brother, took him to a lonely 
spot, and there pointed out where he bad been 
murdered and buried by his own wife and her 
lover. Enraged at this domestic perfidy and 
wickedness the brother denounced his sister-in- 
law, and on his testimony she was condemned to 
be strangled and her body afterwards burned. 

About half a century ago a peculiar case of 
fraud was disclosed by remarkable means during 
the hearing of a law-suit in Tuscany. The 
decision of the court turned on the point whether 
a certain word had been erased from a particular 
document of importance. Chemical processes 
were alleged to have been employed, and acting 
on scientific knowledge one of the lawyers proposed 
that the document should be heated, as thereby a 
slight difference of shade or colouring between 



FATAL LINKS. 221 

the paper and the letters supposed to have been 

removed might l>eeotne visible. Permission was 
given to try the experiment, and on the applica- 
tion of heat the important word in question 
immediately appeared, and the court gave a 
verdict in accordance with this ingeniously 
devised testimony. 

Since that time the progress and development 
of science have enabled criminal investigation to 
be conducted by methods which would otherwise 
be impossible, and with almost unerring certainty 
and decision. The microscope and the spectro- 
scope have been employed in numerous cases of 
murder and forgery where less subtle means of 
discovery would have proved useless ; chemical 
analysis has become an important agent of 
detection, while photography has also rendered 
signal service in the cause of justice. We may 
not have concerned ourselves with the numerous 
methods by which bank-note forgeries are 
detected ; hitherto our references have been 
mainly to the more serious crime of murder, and 
with a few instances of this character brought to 
light through modern science our list must close. 

Although, generally speaking, the microscope 
cannot discern any difference between the blood of 



222 LEGAL LORE. 

man and that of other mammalia, yet the merest 
examination suffices to show the difference 
between mammalian blood and that of birds, 
reptiles, or fishes. In the one case the red blood 
corpuscles are round, and without a nucleus ; in 
the other they are oval and nucleated. On this 
fact the evidence for a prisoner at Chelmsford 
charged with murder was completely rebutted. 
Blood stains had been found on his clothes, 
which, according to his counsel, had been caused 
by chicken's blood. But the prosecution brought 
forward a microscopist, who stated that the blood 
stains were mammalian, and on this testimony 
the plea of the prisoner was rejected. In the 
following year, and at the same assizes, the 
testimony against a man charged with murder 
was strengthened by the microscopical discovery 
of cotton fibres on a certain weapon, which he 
was said to have used, while the murderers of a 
man who had been kicked to death were con- 
victed on the evidence of two doctors, who found 
on the boots of the accused a number of hairs 
corresponding with the hair on the head of the 
victim. Evidence of this kind is becoming of ex- 
treme importance. Hardly a serious crime is 
investigated without the application of one or 



FATAL LINKS. 223 

other of these scientific met hods of detection, and 
with each success the career of the criminal 
becomes increasingly difficult and arduous, and 
his chances of success more remote. Of remark- 
able discoveries of crime the microscope, the 
camera, and the spectroscope furnish the most 
subtle instances, and it is quite possible thai 
before long other methods of investigation, 
founded on the most recent scientific achieve- 
ments, will also be brought into operation. The 
phonograph and the Rontgen rays are only wait- 
ing their turn to serve in the cause of justice. 



postmortem trials. 

By George Neilson. 

IT might be thought that a man's death made 
an end of him, and that his mere body had 
no rights or duties except that of getting decently 
buried. The middle age had other ideas. The 
dead still had status and duties. Continental 
laws recognised acts of renunciation in which a 
widow laid the keys on her husband's corpse, or 
tapped his grave with the point of a halberd. 
The body of a murdered person, or, it might be 
his hand merely, might be carried before the 
judge to demand vengeance. # By English 
thirteenth century law t legal possession of real 
estate was thought to remain in a man, not until 
he died, but until his body was borne forth to 
burial. The dead might be a very potent witness, 
as shewn by the ordeal of bier-right, J a practice 
founded on the belief that the murderer's touch 

* " Micheleb's History of France," viii., ch. I. " Cherucl's Diction- 
naire des Institutions," art. " Cadavre." 

t" Pollock and Maitland's History of English Law," ii., 60. 
Bracton 51b, 262. 

+ " Lea's Superstition and Force" (ed. 1892), 359-70. 



POST MORTEM TRIALS. 225 

would cause the victim's wounds to bleed afresh. 
Thus variously qualified to act as witness or 
prosecutor as occasion required, it is not 
surprising to find the dead as defendant also. 

English history* remembers the strange scene 
enacted in the monastery of Caen in L087, when 
William the Conqueror lay dead there, and the 
ceremonials of his interment were interrupted by 
a weird appeal. Ascelin, the son of Arthur, loudly 
claimed as his, neither sold nor given, the land on 
which the church stood, and, forbidding the 
burial, he appealed to the dead to do him justice. 
More than one t old English poem turned its 
plot round the ancient canon law, by which a 
burial might be delayed for debt. The dead was 
arrestable : a law afterwards set aside, "for death 
dissolved all things." But in more codes than one 
death did not dissolve liability for the con- 
sequences of high treason. 

In Scotland,! in the year 1320, at the " black 
parliament" of Scone, several Scotsmen were 
convicted of conspiracy against King Robert the 

* "Roman de Rou," ii., 9320-40. 

t " Three Metrical Romances" (Camden Socy.), xxvi., 33. See 
"Decretals of Gregory," lib. ii., tit. 28, cap. 25, qua frontt : also 
" Lyndwood'e Provinciale," |>. 278. 

; " Rower's Scot iclironicon,'' ii., i'To. " Extracts c Cronicis," L50. 
" Scalacronica," 144. 

15 



226 LEGAL LORE. 

Bruce. Most of them were drawn, hanged, and 
beheaded. But a Scottish historian of the time 
tells us that Roger of Mowbray, one of the 
accused, having died before his trial, "his body 
was carried to the place, convicted of conspiracy, 
and condemned to be drawn by horses, hung on 
the gallows, and beheaded." It is to the credit 
of Bruce that he did not allow the corporal part 
of the sentence to be carried out, although many 
entries in the charter rolls # shew that the 
consequent escheats of the traitor's lands served 
to reward the loyalty of others. His body 
convicted of conspiracy ! How came this 
singular procedure into Scottish practice ? 

In England, towards the close of the fourteenth 
century, although escheats were not less keenly 
looked after than in Scotland — and that sometimes 
in cases t where men had died unconvicted, — the 
purpose of attainder appears to have been effected 
without the expedient of calling the dead to the 
bar. The dead, however, was convicted. In the 
case of Robert Plesyngton, J for instance, in 1397, 
the judgment of Parliament bore an express con- 
viction of treason, " noun-obstant la mort de (lit 

* "Robertson's Index," 5, 10, 12, 19, 20, 21. 
t " Rolls of Parliament," ii., 335. 
% " Rolls of Parliament," iii., 384. 



POST-MORTEM TRIALS. 227 

Roberd." In 1400, John, Earl of Salisbury, 
challenged for treason by Lord Morley, was 
killed before the day appointed for the duel. 
The court not only adjudged him a traitor,* but 
on grounds eked out by Roman law subjected 
his sureties in costs to his accuser — said costs 
including the handsome fee of 100s. and twelve 
yards of scarlet cloth to the lawyer Adam of 
Usk.t 

In all features save perhaps that of the actual 
presence of the body in the trial, warrant can be 
found for the Scottish practice in Roman law. 
The offence of " majesty," or high treason, formed 
an exception to the great humane general rule 
that responsibility for crime ended with the 
criminal's breath. Under the Lex Julia J death 
was no defence to a charge of " majesty ;" proceed- 
ings could be raised to stamp the dead man's 
name with the brand of treason ; his kinsmen 
might if they chose deny and defend ; but if 
they failed to clear him his goods were confiscated 
and his memory damned. There is in the annals 
of Rome at least one instance § of a death- 

* " Rolls of Parliament," Hi., 459. 
t "Chronicle of Adam of Usk," pp. 44, 45. 

Z "Justinian's Institutes," iv., 18. "Digest," xlviii., 4, 11. 
" Code," ix., 8. 
ij " Tacitus," xvi., 1 1. 



228 LEGAL LORE. 

sentence of this sort pronounced after the accused 
was in his grave. Nor was its scope confined 
absolutely to high treason. The Church had a 
quiet way of appropriating tit-bits of barbaric 
policy for pious uses. The Emperor Theodosius * 
said that the inquisition for heresy ought to 
extend to death itself; and as in the crime of 
majesty, so in cases of heresy, it should be lawful 
to accuse the memory of the dead. The Popes 
endorsed the analogy, t for heretics had goods, 
which sometimes were worth forfeiting. The 
spiritual authority however was of more moment. 
The Church claimed the power to bind and loose 
even after death, J and a Welsh twelfth century 
bishop did not stand alone when he carried it so 
far as to scourge the body of a king who had 
died excommunicate. § On the same principle 
dead heretics — dead before sentence of heresy- 
were burnt. || 

It was by a close following up of Roman juris- 
prudence, with, peradventure, some added light 
from the law and practice of the Church, that 

* "Code," i., 5, 4. + "Decretals of Gregory," v., 7, 10. 

X "Decretals of Gregory," v., 39, 28. "Lea's Studies in Church 
History," 264-66. 
§ " Haddan and Stubbs's Councils," i., 393. " Lea's Studies," 384, 425. 

|| " Lea's Chapters from the Religious History of Spain," 372, 492, 



POST MORTEM TRIALS. 229 

the French devised their prods au cadavre,* by 
which the memory of a dead traitor was attacked. 
lis special application was to lesemajesty 
described as divine and human, the former an 

elastic term coverim-- oHenccs against God and 
religion. Allied to this latter category, though 
not exactly of it, was the mortal sin of suicide. 
Self-slaughter was so deeply abhorrent to 
mediaeval thought as not only to be reckoned 
more culpable, but to call for more shameful 
punishment, than almost any other crime. So 
coupling the traitor and the self-slayer in the 
same detestation, the law assailed both by the 
same strange post-mortem process, and (by 
methods of reasoning which Voltaire was one of 
the first to ridicule) consigned their souls to 
perdition, their memories to infamy, and their 
bodies to the gibbet, t The treatment of the 
suicide was peculiar in its refinements of symbolic 
shame. The body was, by the customary law 
(for example, of Beaumont |), to be drawn to the 
gibbet as cruelly as possible, pour monstrer 

"Cheruel's Dictionnaire," and "Denisart's Collection de Deci- 
sions, ait. '• Lesemajeste, memoire, suicide." 
t For a curious English case of gibbebbing a suicide in 1234, see 

" Maitl.nid's Bracton's Note Book," 1114: compare " Bracton," fo. 130. 
£ " La Loy <le Beaumont" (Heims lSlil), p. 'Jtl. 



•230 LEGAL LORE. 

Vexperience aux aultres. The very door-step of 
the house in which he lay was to be torn up, for 
the dead man was not worthy to pass over it. 
Impalement, transfixture by a stake, though well 
enough known on the continent as a punishment 
of the living, became there and in England alike, 
the special doom of the suicide. Yet the proces 
au cadavre had no footing in English law, and 
although it was already in 1320 received in 
Scotland, we shall find reason for thinking it 
not wholly welcome. 

After the trial in 1320 before alluded to, the 
records in Scotland are silent for over tw T o 
centuries, and it is not until 1540 that the process 
is heard of again. In that year # the heirs of one 
Robert Leslie were summoned to the court of 
parliament to hear his name and memory "delete 
and extinct," for certain points and crimes of 
lesemajesty, and his lands and goods forfeited to 
the king. Legal authorities, t obviously forgetful 
of the fourteenth century instance, follow one 
another in the mistake of regarding Leslie's as 
the first of its kind. The legality of the 

* " Acts of Parliament, Scotland," ii., 356. 

+ "Mackenzie's Criminal Law," i., 6, 21-2. "Hume's Law of 
Crimes i., 539. " Pitcairn's Criminal Trials," ii., 278. " Riddell's 
Scottish Peerages," ii., 757-58. 



POST MORTEM TRIALS. 231 

procedure was called in question at the time. 
Indued, so loud was the murmur that it can still 
be heard in the act passed to put it to silence. 
"It is murmurit," says the enactment, "that it is 
ane noveltie to rais summondis and move sic ane 
actioun aganis ane persoun that is deide, howbeit 
the commoun law directly providis the samin."* 
The three estates of parliament therefore on the 
motion of the lord advocate, declared unanimously 
"all in ane voce, butt variance or discrepance," 
that the cause was just and conform to common 
law. In another case of the following year}; the 
charge and judgment were enrolled in the Acts of 
Parliament. The widow and the heir of the late 
James Colville were summoned " to see and hear 
that the said deceased James, whilst he lived had 
committed the crime of lesemajesty." The de- 
liverance of parliament as tribunal was by its 
terms an actual sentence upon the dead — "that the 
deceased James "lies incurrit the panis of crime 
of lesemajeste " for which causes the court 
decerned "the memoure of the said uniquhile 
James to be deleit," and his possessions confis- 
cated to the crown. 



" Acts Pari. Scot.," ii., 356. t Bui- without. 

X "Acts Pari. Scot.," ii., 369. 



232 LEGAL LORE. 

Parliament which had unanimously voted the 
procedure well based in law, found that it was 
dangerous. It was necessary to restrict its scope. 
In 1542, it is on parliamentary record* that 
"the lordis thinkis the said act [i.e., of 1540], 
ower generale and prejudiciale to all the barions 
of this realme." This would never do :— an act 
prejudicial to the barons ! So it became statute 
law in 1542, that it should apply only to cases of 
grave treason, public and notorious during the 
offender's life, and that prosecution for the future 
must be raised within five years after the traitor's 
death. It was a reasonable restraint, not always 
observed. 

During the reigns of Mary and James VI. a 
number of trials occurred in which this singular 
process was resorted to, and in some, if not all, of 
which the body of the dead appeared at the bar. 
Occasionally it was embalmed for the purpose, t 
It had been a part of the border code, prevalent on 
the marches of England and Scotland, that an 
accused should, although dead, be brought to 
the place of judgment in person. In 1249, the 
marchmen of both realms had declared the law in 

* "Acts Pari. Scot.," ii., 415. 

t Case of Earl of Huntly in 1562. Tytler's " Hist, of Scotland," 
iii., 167. 



POST MORTEM TRIALS. 233 

that sense. They said that, in any plea touching 
life ami limb, if the defendanl died the body of 
him should be carried to the march od the day 
and to the place fixed between the parties, 
because — concludes this remarkable provision* — 
■•n«> man can excuse himself by death.." And in 
the end of the sixteenth century the borderers 
had not forgotten the tradition their forefathers 
had inherited in the thirteenth, for in 1597, when 
Scotsmen and Englishmen were in fulfilment of 
their treaty obligations presenting their promised 
pledges, the custom was scrupulously observed on 
the English side. All were there, — all, though 
all included one that was no more, t " Though e 
one of the nomber were dead, yet was lie brought 
and presented at this place." They evidently 
believed on the borders, which Sir Robert Cary 
with some reason called J an ''uncristned 
cuntry," that a man could best prove that he 
was dead by attendance in person. 

In trials for treason this principle was pushed 
in some instances to strange extremes. Probably 
one underlying reason of this, at a date so late, 
was to make sure that no formality should be 

* "Acts Pari. Scot.,"' L, 415. 

t " Bain'? Calendar of Border Papers," ii., 417. 

£ " Border Papers," Li., 711. 



284 LEGAL LORE. 

lacking to make the forfeiture effective. But the 
main reason one must believe lay in its being a 
traditional observance. In the trial in 1600, of 
the Earl of Gowrie and his brother for an alleged 
attempt on the king's life, the privy council on 
the preamble # that it was necessary to have their 
corpses kept and preserved unburied, issued an 
act to that effect, and the treasurer's accounts 
contain an entry " for transporting of the corpis 
of Growrie and his brother." Their bodies were 
accordingly produced at the trial, and the sentence 
which pronounced them guilty of treason and 
lesemajesty during their lifetime, declared t their 
name, memory, and dignity extinguished, and 
ordained that "the dead bodeis of the saidis 
Treatouris," should be hanged, quartered, and 
o-ibbetted. Their "twa hedis," a grim diarist J 
tells, were set upon the tolbooth, " thair to stand 
quhill § the wind blaw thame away." 

The last case || in the annals, in which this 
revolting Scottish " practick " was put into effect, 
occurred in 1609. Robert Logan, of Restalrig, 

* Pitcairn's Crim. Trials," ii., 233, 241. 
t Pitcairn, ii., 167-8. "Acts Pari. Scot.," iv., 199. 
X " Birrel," quoted in " Pitcairn," ii., 247. § Quhill, until. 
|| For an example in 1603, that of Francis Mowbray, see " Pitcairn," 
ii., 406-9. 



POST-MORTEM TRIALS. 235 

had been nearly three years in his grave when it was 
given out that he had been a party to the alleged 
Gowrie conspiracy against King James. A 
process* was at once taken in hand to proscribe 
his memory and escheat his property. As death 
was no excuse, neither was burial ; and the 
ghastly form was gone through of exhuming the 
bones for presentation at the trial. It was a case 
plainly within the exception provided for in the 
act of 1542, for the man was not " notourly " a 
traitor, he had died in repute of loyalty : but the 
Crown was eager for a conviction. Much 
incredulity had been rife with regard to the 
Gowrie conspiracy. The evidences now adduced 
were — on the surface at any rate, although, per- 
haps, as many critics still think, on the sur- 
face only, — circumstantial and strong. The 
prosecution was therefore keenly pressed, and 
the reluctance of some of the judges over- 
come. A jocular jurist-commentator on these 
post-mortem trials, has remarked t that the bones 
of a traitor could neither plead defences, nor 
cross-question witnesses. But in the dawn of the 
seventeenth century they could turn the sympathy 

* A full account of the trial is given in " Pitcairn," ii., 276-92. 
t Lord Hailes quoted in " Pitcairn," ii., 277. 



236 LEGAL LORE. 

of the court against the charge, as it appears they 
did in Logan's case. The proofs, however, looked 
overwhelming, and the forfeiture was carried 
without a dissenting voice from the bench — from 
the bench, because it was, as all Scots treason- 
trials then were, a trial by judges only, not by 
judge and jury. Logan's memory was declared 
extinct and abolished, and his possessions 
forfeited. The judgment, however, wreaked no 
vengeance on the exhumed remains. Humanity 
was asserting itself even in the trial of the dead, 
and that institution itself was doomed. Although 
in disuse ever after, it did not disappear from the 
theory of law until 1708, when the act 7 Anne, 
chapter 21, prescribing jury-trial for treason, 
assimilated the Scots law on the subject to that 
of England, and thus brought to an unregretted 
end one of the most gruesome of legal traditions. 



3siairt Xaws. 

B \ Cuming Wa lters. 

A VKRY curious and interesting phase of 
L V. self-government is that which is supplied 
by the independent Legal system established in 

various small islands in the United Kingdom. 
It is amusing to notice these little communities 
on rocky islets tenaciously preserving their ancient 
privileges, and revelling in the knowledge that they 
have a code of their own by no means in harmony 
with the statute law of the country of which they 
are an insignificant part. The tribunals and the 
legal processes in the Channel Islands, in the 
Scilly Islands, in the Isle of Man, and even in 
some of the smaller islands round the English 
coast, differ entirely from those established in 
the motherland ; and any suggestion of change is 
warmly resented. In many cases it has not, of 
course, been worth while to insist on reform, inas- 
much as the islands are inhabited only by a few 
families, who may be left in peace to settle their 
own differences if any occur. 



238 LEGAL LORE. 

There are a great many scattered islets about 
the sinuous line of Irish coast, very few of which 
are ever visited by strangers. The conditions of 
life in these isolated places are seldom investigated, 
and yet we find there are some remarkable sur- 
vivals of old customs and relics of ancient laws. 
The people are independent, because they feel 
they are totally separated from the mainland, and 
possess neither the means nor the desire to cross 
over to it. They are in many respects a race by 
themselves, and their attachment to their little 
homes of rock is such that one of their severest 
punishments for offenders is to transport them to 
Ireland. Such an island is Raghlin, or Rathlin, 
six miles distant from the north-west of Antrim, 
but might be six hundred miles, judging by the 
slight intercourse the handful of inhabitants has 
with the larger world. Another such island is 
Tory, ten miles from the Donegal coast, where up 
to a few years ago the dwellers were unacquainted 
with any other law than that of the Brehon code. 
A visitor in 1834 found them choosing their own 
judge, and yielding ready obedience to mandates 
" issued from a throne of turf." In this case, and 
in the case of the Cape Clear islanders, it was 
found that the threat of banishment to the main- 



ISLAND LAW'S. 239 

land was severe enough to prevent serious crime. 
These feelings probably have been modified in 

more recent times, yet the intensity of the attach- 
ment of islanders to their native rock is one of the 
ineradicable characteristics which account for the 
sturdy independence manifested in their laws and 
customs. Their little homes are miniature worlds 
which they prefer to govern themselves in their 
own way. We may take the Scillies as a 
favourable example, where the natives cling to 
the system of civil government by twelve principal 
inhabitants forming a Court presided over by a 
military officer. The Court is held every month, 
and it has jurisdiction in civil suits and minor 
causes. The Sheriff for Cornwall has, or, at all 
events, had, no jurisdiction in the islands, 
though persons prosecuted for felonies (which are 
extremely rare) have to be relegated to the 
Assizes at Launceston. 

The patriarchal system has always been much 
in evidence in the small Scotch islands, which, for 
the most part, are the possessions of the des- 
cendants of feudal chieftains. Dr. Johnson 
adverted to this fact on the occasion of his 
famous journey in the North: — "Many of the 
smaller islands have no legal officers within them. 



•210 LEGAL LORE. 

I once asked, if a crime should be committed, by 
what authority the offender could be seized, and 
was told that the laird would exert his right ; a 
right which he must now usurp, but which merely 
necessity must vindicate, and which is therefore 
yet exercised in lower degrees by some of the 
proprietors when legal process cannot be ob- 
tained." But after observing how the system 
operated, Dr. Johnson freely admitted that when 
the lairds were men of knowledge and virtue, the 
convenience of a domestic judicature was great. 
Owino- to the remoteness of some of the islands 
and the difficulty of gaining access to others, it 
was scarcely possible to bring them under the 
common law, and we find that in some instances 
the proprietors were allowed to act as magistrates 
by the Lord-Lieutenant's commission. Some of 
the old lairds had a very effective but unjudicial 
method of enforcing their laws. Lord Seaforth, 
Hio-h Chief of Kintail, was anxious to abolish a 
very odious custom of woman-servitude which 
prevailed in the island of Lewis. The men were 
wont to use the women as cattle, compelling them 
to draw boats like horses, and, among other things, 
to carry men across the deep and dangerous fords 
on their backs. This practice greatly disgusted 



ISLAND LAWS. 241 

Lord Seaforth, who found, however, that it was 
one particularly hard to check. Ho arrived one 
day on horseback at a stream which a peasant 
was contentedly crossing, mounted on a woman's 
shoulders. Winn the middle of the stream was 
reached, the laird urged his horse forward, and 
came up with the couple, when by vigorously 
laying his whip about the back of the man, he 
compelled him to dismount, and wade as best he 
could to the opposite bank. This practical indica- 
tion of the laird's wishes aided considerably in 
producing a change. 

The Scotch islanders are a law-abiding people, 
and patriarchal government sufficed. It was re- 
corded of the inhabitants of Skye that, during a 
period of unusual distress and semi-starvation, not 
a single sheep was stolen. So keen is the sense 
of propriety in that island that a whole family 
has been known to slink away, unable to bear 
the disgrace brought upon them by an individual 
delinquent. Orkney and Shetland once possessed 
all the characteristics of a separate kingdom, the 
laws of no other countries being imposed upon 
them. There was none to dispute the laird's 
right, and legal administration was entirely in his 

hands, except for the period that the islands 

16 



242 LEGAL LORE. 

were placed under episcopal rule. It is worth 
noting that the most famous of the governing 
bishops, Robert Reid (tempus 1540), also filled 
the hio-h office of President of the Court of 
Session at Edinburgh, and he and his successors 
are said to have ruled with conspicuous mildness 
and equity. 

We may now turn to one or two English 
islands before devoting attention to the most 
important examples of all — those supplied by the 
Isle of Man and the Channel Islands. The Isle 
of Wight is only regarded as " separate " from 
Hampshire for one legal purpose, so far as I have 
been able to ascertain. It is part of the " county 
of Southampton " for all purposes except the 
land-tax payment : for this it has a separate 
liability. But the land-tax divisions are the 
most irregular, and the least uniform of any legal 
divisions in the country, and it is therefore not 
surprising that the Isle of Wight should in this 
respect be subject to peculiar usage. Purbeck is 
one of those "isles" in England which now 
depend more upon tradition for their designation, 
than natural accordance with the geographical 
definition. What is remarkable is that these 
"isles" — such as the Isle of Purbeck, the Isle of 



ISLAND LAWS. 243 

Ely, the Esle of Glastonbury, and the Isle of 
Meare — nearly all have certain well-establish«d 
and recognised laws of their own for the little 
communities which dwell within their borders. 
The (juarrynien of Purbeck consider themselves a 
race apart, and their guild is one of the closest 
and strictest character. Their homage is paid 
exclusively to the lord of the manor, and the 
" Marblers " claim to have received a special 
charter from King Edward. On Shrove Tuesday 
they elect their officers, and celebrate the occasion 
by kicking a football round the boundaries. One 
ancient custom observed on these occasions is to 
carry a pound of pepper to the lord of the manor, 
as an acknowledgement to him in respect to a 
"right of way." Until comparatively recent 
times the government of the island was patri- 
archal in character. The Isle of Glastonbury 
had its " House of Twelve Hides " for the trial of 
petty cases in the locality, and tradition reports 
that unusually large dungeons were prepared for 
the immuring 1 of those who offended in the 
renowned Avalonian isle. 

The Isle of Man, when subject to the Kings of 
Norway, was a subordinate feudatory kingdom. 
It afterwards came under the dominion of the 



244 LEGAL LORE. 

English Kings, John and Henry III., but passed 
afterwards to the Scotch. Henry IV. eventually 
claimed the little isle, and disposed of it to the 
Earl of Northumberland, but upon this famous 
nobleman's attainder it went to Sir John de 
Stanley. Its government seemed destined to be 
unsettled, however, and though the title of king 
was renounced by the possessors of the land, they 
maintained supreme and sovereign authority as to 
legal process. In the Isle of Man no English 
writ could be served, and as a result it became 
infested with smugglers and outlaws. This was 
unsatisfactory, and, in 1765, the interest of the 
proprietor was purchased, in order that the island 
should be subject to the regulations of the British 
excise and customs. 

According to Blackstone, than whom there 
could be no greater authority, the Isle of Man is 
"a distinct territory from England, and is not 
governed by our laws ; neither doth an Act of 
Parliament extend to it unless it be particularly 
named therein." It is consequently a convenient 
refuge for debtors and outlaws, while its own 
roundabout and antiquated methods of procedure 
have been found to favour the criminal rather 
than to aid prosecutors and complainants." Per- 



[SLAND LAWS 245 

haps this was never more vividly illustrated than 
in the n ri nt ease <>f thu murderer Cooper, who 
profited by the cumbrous and lenient processes of 
Manx law to the extent of > -fit in**' an atrocious 

o o 

(•rime reduced to manslaughter. The laws have 
often been amended. Prior to 1417 they were 
" locked up in the breasts of the Deemsters," but 
Sir John Stanley found that so much injustice 
was being done under the pretence of law, that he 
ordered a promulgation to be made. But "breast 
laws " continued to be administered for another 
two centuries, until Lord Strange, in 1G3G, com- 
manded that the Deemsters should " set down in 
writing, and certify what these breast laws are." 
In 1777, and also in 1813, the laws of the island 
were again amended, and every criminal was 
allowed three separate and distinct trials before 
different bodies. First the High Bailiff hears his 
case, then the Deemster and six jurymen, and, 
thirdly, if he has been committed for trial, he is 
brought before the Governor and the Deemsters. 
By the time the case gets to the final court it has 
usually been " whittled down " to the smallest 
possible proportions, and doubts have often been 
raised whether justice is not marred by misplaced 
and unwarranted lenity. Another strange prac- 



2-16 LEGAL LORE. 

tice is that the Manx advocates combine the parts 
of barrister and attorney. The law is hard upon 
debtors, who can be lodged as prisoners in Castle 
Rushen, if it is suspected that they are about to 
leave the island ; but there are no County Courts. 
On the other hand, there are Courts of Law of 
almost bewildering variety— the Chancery Court, 
the Admiralty, the General Gaol Delivery, the 
Exchequer, the Ecclesiastical, the Common Law, 
the two Deemsters' Courts for the north and 
south of the island, the Seneschal's Court, the 
Consistorial, the Licensing, and the High Bailiff's. 
Each sheading, or subdivision, has its own coroner 
or sheriff, who can appoint a "lockman" as his 
deputy ; and each parish (there are seventeen) 
has its own captain and a " sumner," whose duty 
in old times was to keep order in church and 
"beat all the doggs." Manx law had, and per- 
haps to some extent still has, a similar reputation 
either for allowing criminals in the island to 
escape easily, or for permitting English criminals 
to remain unpunished ; hence the old ribald verse 
which represents the Devil singing — 

" That little spot I cannot spare, 
For all my choicest friends are there." 

The Deemster's oath is a curiosity in itself: — 



ISLAND LAWS. 247 

"I do swear that 1 will execute the laws of the 
isle justly betwixt party and party as indifferently 
as the herring's backbone cloth lie in the midst of 
the fish." Formerly the elective House of Keys 
possessed judicial as well as legislative functions, 
but this power was taken from it by the Act of 
18GG. Laws are initiated in the Council and the 
Tynwald Court, which promulgates them, consists 
of the members of the Council, and the House of 
Keys, who unite for the occasion. Tynwald Day 
as described by Mr. Hall Caine is an interesting, 
historic, but not an impressive ceremony. A 
thousand years ago the Norsemen established a 
form of government on the island, and every fifth 
of July the Manxman has his open-air Parliament 
for the promulgation of laws. But it is a gala 
day rather than a day of business. " Reluctantly 
I admit," writes Mr. Hall Caine, " that the pro- 
ceedings were, in themselves, long, tiresome, 
ineffectual, formless, unimpressive, and unpic- 
turesque. The senior Deemster, the amiable and 
venerable Sir Wm. Drinkwater, read the titles 
of the new laws in English. Then the coroner of 
the premier sheading, Glenfaba, recited the same 
titles in Manx. Hardly anybody heard them; 
hardly anybody listened." 



248 LEGAL LORE. 

The Channel Islands were part of the Duchy of 
Normandy, and their laws are mostly the ducal 
customs as set forth in an ancient book known as 
" Le Grand Coustumier." Acts of the English 
Parliament do not apply to these Islands unless 
specifically mentioned, and all causes are deter- 
mined by their own courts and officers. In Mr. 
Ansted's standard work on the Channel Islands 
(revised and edited by E. Toulmin Nicolle, 1893), 
a long chapter is devoted to the whole subject, 
and it is so complete and well expressed that I 
venture without much alteration of phraseology 
to summarise its leading points. Jersey and 
Guernsey have diverged greatly from each other 
in their legal customs, and it is also curious to 
find that each of the smaller islands possesses its 
own particular constitutions and courts. The 
rights and customs of the " States," which are an 
outcome of the mediaeval Royal Court, have 
constantly undergone modification and have been 
remodelled, but they retain many of the ancient 
characteristics. The Bailiff (Bailli), or chief 
magistrate, is the first civil officer in each island, 
and usually retains his office for life. He presides 
at the Royal Court, takes the opinions of the 
elected Jurats, and when their voices are equal 



ISLAND LAWS. 249 

has a casting vote both in civil and criminal c 
The Bailiff is not required either in Jersey or 
Guernsey to have had a legal education. He is 
appointed by the Crown, but has usually held 
some position at the island bar. Formerly the 
advocates practising in the court of Jersey were 
nominated by the Bailiff, and were limited to six 
in number. In I860, however, the bar was thrown 
open to every British subject who had been ten 
years resident in the island, and who was qualified 
by reason of being a member of the English bar, 
having taken a law degree at a French University, 
and having passed an examination in the island. 
In Guernsey the advocates are also notaries, and 
frequently hold agencies. The judicial and legisla- 
tive powers in Jersey are to some extent separate, 
but in Guernsey they are intimately associated — 
a fact which accounts for much of the difference 
in custom in the two islands. 

The ancient Norman law contained in " Le 
Grand Coustuinier " dates back to the thirteenth 
century, was badly revised in the time of Queen 
Elizabeth, and became the Code. Trial by jury was 
established in 1786, and the laws on the subject 
have undergone considerable change. There is a 
committing magistrate, and the trial takes place 



250 LEGAL LORE. 

at the Criminal Assizes of which there are six 
in the year. The jury numbers twenty-four ; if 
twenty agree, the verdict is taken ; if less than 
twenty the prisoner is set free. Minor offences 
are referred to a court of Correctional Police 
presided over by a magistrate who is independent 
of the Royal Court. The same magistrate pre- 
sides over the court for the recovery of small 
debts, and there is no appeal from his decision. 
Then there are subsidiary courts for various police 
purposes, while the Court of Heritage entertains 
suits regarding real estate. The arbitrary opera- 
tion of these Courts may have very evil results, 
especially for strangers who are unlearned in the 
peculiarities of Jersey law. I find a striking 
example of this in a magazine of June 15th, 1861, 
in which a hard experience is detailed with 
comments which appear to be fully justified by 
the circumstances. The writer says :— 

"Before leaving England I had had a serious 
quarrel with a former friend and medical attendant, 
and no long time elapsed after our arrival in the 
island, before this gentleman sent me in a bill 
of monstrous proportions — a true ' compte 
d'apothecaire ' as the French express it. At that 
time I was quite ignorant of the singular con- 



ISLAND LAWS. 251 

stitution of Jersey law, and how it placed me in 
the power of any man who chose fco sue me 
whether I owed him money or not. I wrote to 
the doctor, refusing to pay the full amount of his 
claim, and referring him to a solicitor in London. 
He was, however, better acquainted with the 
Jersey law than myself, as the result will show. 
Here, before proceeding with my story, I will 
enter into some explanation of the law of debtor 
and creditor as it exists in Jersey. This law 
enables the creditor to enforce his demands 
summarily, depriving the party sued of his liberty, 
and leaving him in o-aol till the costs of his 
imprisonment have swelled the amount to be paid : 
and further, supposing the defendant ultimately 
gains his suit, and proves his non-liability, no 
damages for false imprisonment are obtainable. 
The law leaves him no remedy, for the plaintiff 
makes no affidavit ; and a simple letter from 
England, requesting a Jersey advocate to enforce 
payment of a claim, is enough to cast the defendant 
at once into prison, prior to any judicial investiga- 
tion into the merits of his case. 

" Thus, in Jersey, every man (unless he be a 
landed proprietor) is at the mercy of every other 
man, both in the island and out of it. In short, 



252 LEGAL LORE. 

one man can arrest another simply by drawing up 
an imaginary account on a common bit of paper, 
and handing it to the nearest lawyer, who will 
send his clerk with the sheriff's man and imprison 
the unfortunate victim in default of immediate 
payment. What is worse still, an arrest can be 
carried into effect, by means of a simple letter 
sent through the post. The exception in favour 
of land-owners of course includes the owners of 
house property, an exception which mostly benefits 
Jersey-men, as few but natives possess property 
in the island. It is only a proprietor who must 
be sued before he can be imprisoned. If the 
Jersey laws confined the persons merely of 
strangers sued by the inhabitants of the island, 
in the arbitrary manner described, the justice of 
such a practice might still be defended on the 
plea of preventing them from leaving the island ; 
but no excuse can be found when the Jersey law 
is made an instrument in the hands of strangers, 
living out of the jurisdiction of the island, and 
when it is used to enforce payment of debts 
incurred in another place, and in which no in- 
habitant of the island is interested, and when (as 
sometimes happens) it is employed as a means of 
extortion. In the first case it can be ur^ed that, 



TSLAND LAW'S. 253 

at least, it gives protection to the islander, which 
may be all proper enough, though the system is 
liable to abuse. In the second, the injustice and 
folly of the law is flagrant. By what right or 
reason ought the Jersey code, without previous 
inquiry, to deprive one man of his liberty at the 
demand of another, when both are strangers, and 
when the dispute relates to matters wholly beyond 
its pale, and in reference to which it has no 
means of obtaining information on oath ? Yet 
such is the case, and thus the Jersey law is 
converted into a mere tool of iniquity and 
oppression. In speaking of this strange anomaly 
in Jersey law, I am not referring to bills of 
exchange, or to securities of any sort, but merely 
to simple debts, free from any acknowledgment 
or signature whatever. In any other Court, such 
claims would not be entertained for a moment. 
Surely the law is barbarous enough for the people 
of Jerse}^, without its consequences being extended 
beyond its circumference. But, as matters stand 
at present, the case stands thus : A and B fall 
out together. Now B is a rogue. They go to 
law together, and B demands of A more than he 
is entitled to. The courts in England are about 
to decide upon the merits of the case. Meanwhile 



254 LEGAL LORE. 

B learns that A is gone to Jersey for a short time 
on business, perhaps connected with this very 
affair, such, for instance, as looking up an important 
witness. What does B do? He immediately sends 
off a letter enclosing his little account to a Jersey 
lawyer, instructing him to demand payment or lock 
up A forthwith. The lawyer obeys, of course ; A 
storms — protests — all in vain. He is incarcerated, 
and is told he may explain as much as he likes 
afterwards ; but, in the meantime, must go to 
prison, or 'pay. At last poor A, whose liberty is 
important to him, wearied with the delays which 
it is the interest of the Jersey lawyers to raise in 
his suit for judgment, pays the demand into court 
(au greffe) to be adjudicated on — costs of law 7 , 
costs of imprisonment and all. The latter item 
includes 10s. every time the prison door is opened 
to let him pass on his way to court — a journey he 
has too often to perform without much approach 
to a denoument, and whither he is obliged to go 
under escort like a criminal ; and this process is 
repeated several times, without the cause even 
beino- called on for hearing. Worst of all, when A 
comes out, he has to decide upon the merits of the 
case. Meanwhile no remedy against B, who, of 
course, being satisfied, withdraws his suit at home." 



ISLAND LAWS. 



250 



Another .seeming anomalous process may be 
cited. An appeal lies from some of the small 
Courts to the full Court, or Nombre SupSrieur, 
but the jurats who sit in the Court of First 
Instance are not debarred from sitting in the Full 
Court when an appeal from their own judgment 
is being heard ! All the proceedings are carried 
on in the French language, which is again ex- 
tremely inconvenient for the English residents. 
The Bailiff comments on the evidence and on the 
arguments of the pleaders, collects the opinion of 
the jurats, and delivers judgment. In Guernsey 
the decisions are given in private. " Pleadings 
in these courts are very simple," says Mr. Ansted. 
" The plaintiff must serve on the defendant a 
summons or declaration, setting forth the nature 
of his claim, and in some cases the reasons on 
which it is grounded are added. If not sufficiently 
definite the declaration is sent back by the Court 
for amendment. If the defendant means to plead 
any objections by way of demurrer or special plea, 
these are at once heard and disposed of. If the 
parties join issue on the merits of the case, the 
Court hears the parties, or their counsel, and 
decides. If the case be intricate the parties are 
sometimes sent before the Greffier — in Guernsey 



256 LEGAL LORE. 

before one of the jurats, — who reports, condensing 
the matter in dispute, and presenting the points 
to the court for decision." Trial by jury does not 
exist in Guernsey. The court at Alderney is 
subordinate to that of Guernsey. The jurisdiction 
in matters of correctional police is final where the 
offence can be punished by a month's imprison- 
ment or a fine not exceeding £5 ; otherwise it is 
referred to Guernsey for trial. The Court of Sark, 
which has undergone many strange vicissitudes 
sinceits institution in 1579, consists of the seneschal, 
or judge, the prevot and the greffier, all appointed 
by the feudal lord, or seigneur. The seneschal is 
an absolute authority in small cases, but his right 
of punishment is limited to the narrow bounds of 
inflicting a fine of about four shillings, and of 
sentencing to three days' imprisonment. All 
cases demanding severer treatment are relegated 
to the Guernsey Courts. Enough has been said 
to show that Mr. Ansted was justified in declaring 
that though the islanders were unfitted by their 
habits and education for any radical change in 
their peculiar institutions, yet "the practice of 
the law courts both in Jersey and Guernsey has 
long been felt to be in many cases cumbrous, not 
to say objectionable. Indeed, where so much 



ISLAND LAWS. 257 

that is personal interferes in the administration of 

justice, and where personal and family influence 
cannot hut he felt, it is not astonishing that 
reasonable complaints are sometimes heard." 
Three times during the present century Royal 
Commissions have enquired into Jersey law, but 
their recommendations have been systematically 
ignored. No remedies have been carried out, and 
the islanders cling with extraordinary pertinacity 
to customs which are notoriously abused and to 
priveleges which are opposed to fair-dealing. 
The Channel Islands and the Isle of Man are 
standing evidence of the danger incurred by such 
independence of legal authority as they have 
hitherto been permitted to enjoy. 



17 



Gbc Xittle 3nns of Court. 

THE origin of the decadent institutions 
located in certain grim and dreary-looking 
piles of building dotting the district of the Inns 
of Court proper, and known as the little Inns of 
Court, is involved in considerable obscurity. 
They appear to have originally held a similar 
position to the great seats of legal education as 
the halls of Oxford and Cambridge do to the 
Universities. But at the present time their 
relation to the Inns of Court proper is not very 
clear, and the uses they serve, otherwise than as 
residential chambers, are just as hard to discover. 
This state of mistiness concerning them has 
existed so long that no one now seems to know 
anything about them, and the evidence taken 
more than forty years ago by a Royal Commission 
did so little to clear away the dust and cobwebs 
hanging about them that they still remain, in the 
words of Lord Dundreary, " things that no fellow 
can understand." 

Lyon's Inn has since that time been swept 



THE LITTLE INNS OF COURT. 259 

away to make room tor the new Court-; of Law, 
without any person evincing the smallest interesl 
in its late. Concernino- this institution all that 
could be learned by the Royal Commission was 
contained in the evidence of Timothy Tyrrell, 
who " believed " that it consisted of members or 
"ancients," he could not say which ; he believed 
the terms were synonymous. There were then 
only himself and one other, and within his 
recollection there had never been more than five, 
and they had nothing to do beyond receiving the 
rents of the chambers. There were no students, 
and the only payment made on account of legal 
instruction was a sum of £7 13s. 4d. paid to the 
society of the Inner Temple for a reader ; but 
there had been no reader since 1832. He had 
heard his father say that the reader " burlesqued 
the things so greatly" that the ancients were 
disgusted, and would not have another. There 
was a hall, but it was used only by a debating- 
society ; and there was a kitchen attached to it, 
but he had never heard of a library. 

New Inn appears to have been somewhat more 
alive than Lyon's, though it does not seem to 
have done any more to advance the cause of legal 
education. The property is held under the 



260 LEGAL LORE. 

society of the Middle Temple, by a lease of three 
hundred years from 1744, at a rent of four pounds 
a year. Among the stipulations of the lease is 
one allowing the lessors to hold lectures in the 
hall, but none had been held since 1846, in 
consequence, it was believed, of the Middle 
Temple ceasing to send a reader. The lectures 
never numbered more than five or six in a year ; 
and there is now no provision of any kind for 
legal education. Samuel Brown Jackson, who 
represented the inn before the Royal Commission, 
said he knew nothing concerning any ancient 
deeds or documents that would throw any light 
on the original constitution and functions of the 
body. If any there were, he "supposed" they 
were in the custody of the treasurer. The only 
source of income was the rents of chambers, 
which then amounted to between eighteen and 
nineteen hundred pounds a year ; and the ancients 
have no duties beyond the administration of the 
funds. 

Concerning the origin of Clement's Inn, 
Thomas Gregory, the steward of the society, was 
unable to afford full information, but he had seen 
papers dating back to 1677, when there was a 
conveyance by Lord Clare to one Killett, 



THE LITTLE INNS OF COURT. 261 

followed by a Chancery suit between the latter 
and the principal and ancients of the society, 
which resulted in a decree under which the 
property so conveyed became vested in the inn. 
Some of the papers relating to the inn had been 
lost by fire, and "some of them," said the witness, 
"we can't read." The inn, he believed, was 
formerly a monastery, and took its name from 
St. Clement. It had once been in connection 
with the Inner Temple, but he could find no 
papers showing what were the relations between 
the two societies, "except," he added, "that a 
reader comes once a term, hut that was dropped 
for twenty years — I think till about two or three 
years ago, and then we applied to them ourselves, 
and they knew nothing at all about it ; the 
under-treasurer said he did not know anything 
about the reader, and had forgotten all about it." 
It was the custom for the Inner Temple to 
submit three names to the ancients ; and, said the 
witness, " we chose one ; but then they said that 
the gentleman was out of town, or away, and that 
there was no time to appoint another." But no 
great loss seems to have resulted thereby to the 
cause of legal education, for it appears that all a 
reader had ever done was to explain some recent 



262 LEGAL LORE. 

Act of Parliament to the ancients and commoners, 
there being no students. The inn had no library 
and no chapel, but as a substitute for the latter 
had three pews in the neighbouring church of St. 
Clement, and also a vault, in which, said the 
witness, "the principals or ancients may be 
buried if they wish it.' : 

Some remarkable evidence was given concern- 
ing Staples Inn, and the more remarkable for 
being given by Edward Rowland Pickering, the 
author of a book on the subject, which publication 
one of the Commissioners had before him while 
the witness was under examination. " You state 
here," said the Commissioner, "that in the reign 
of Henry V., or before, the society probably 
became an Inn of Chancery, and that it is a 
society still possessing the manuscripts of its 
orders and constitutions." " I am afraid," replied 
the witness, "that the manuscript is lost. The 
principal has a set of chambers which were burnt 
down, and his servant and two children were 
burnt to death, seventy years ago ; and I rather 
think that these manuscripts might be lost." 
Where the learned historian of the inn had 
obtained the materials for that work is a question 
which he does not appear to have been in a 



THE LITTLE INNS OF COURT. 263 

position to answer; for when asked whether lie 
knew of any trace of a connection between ill'' 
society and an Inn of Court, he replied, 
" Certainly, I should say not. h is sixty years 
since I was there, boy and all." A very strange 
answer considering the statement in his book. 
During the sixty years he had been connected or 
acquainted with the society, he had never heard 
of the existence of a reader, or of any association 
of the inn with legal education or legal pursuits. 
The only connection claimed for the inn by the 
principal, Andrew Snape Thorndike, was that, 
when a serjeant was called from Gray's Inn, that 
society invited the members of Staples Inn to 
breakfast. There is a singular provision respect- 
ing the tenure of chambers in this inn by the 
ancients. "A person," said this witness, "holds 
them for his own life, and though he may be 
seventy years of age, if he can come into the 
hall, he may surrender them to a very young 
man, and if that young man should live he may 
surrender them again at the same age." If a 
surrender is not made, the chambers revert to the 
society. 

Barnard's Inn is a very old one, and the 
property has been held on lease from the dean 



264 LEGAL LORE. 

and chapter of Lincoln for more than three 
hundred years. The society consists of a 
principal, nine ancients, and five companions, 
which latter are chosen by the ancients ; but we 
fail to gather from the evidence of Charles 
Edward Hunt, treasurer and secretary of the inn, 
by what principles the ancients are guided in the 
selection. We learn, however, that applications 
for admission by solicitors are not allowed. Such 
a thing had occurred once, but it was as long ago 
as 1827, and "of course," said the witness, "we 
refused him, and he applied to the court, and 
after some difficulty he got a rule nisi for a 
mandamus. It came on to be tried before Lord 
Tenterden, and Lord Tenterden said it could not 
be granted ; that we were a voluntary association, 
and the court had no jurisdiction." The applicant 
seems to have based his claim on the ground that 
Barnard's was an Inn of Chancery, and that, as a 
solicitor, he had a right to be admitted. The 
matter was scarcely worth contention, as the 
privileges of the companions are confined to 
dining in hall and the chance of being made an 
ancient, that favoured grade being entitled to 
" their dinners and some little fees." The books 
of the society showed no trace of there ever 



THE LITTLE INNS OF COURT. 265 

having been any students of* law connected with 
the inn. "The oldest thing 1 find," said the 
witness, "is that a reader came occasionally from 
Gray's Inn to read; but what he read about, or 
who paid him, there is no minute whatever." 
He did not know when a reader last came from 
Gray's Inn; he thought it was about two 
hundred years ago. It only remains to be told of 
Barnard's Inn that it has not even a library ; 
there had been a few books at one time, the 
witness told the Commission, but they were sold 
as useless ! 

Concerning the remaining little inns — Clifford's, 
Symond's, and Furnival's — no evidence was taken. 
They appear to be merely residential chambers, 
much the same as some of those concerning which 
we have information in the report of the Royal 
Commission and the evidence given before it, and 
the chambers are far from being used exclusively 
by members of the legal profession. Nearly 
sixty years ago the present writer found a retired 
army officer occupying chambers in Clifford's, 
and on a later occasion made at Symond's Inn, 
the acquaintance of a curate who resided there 
with his wife and a young family ! Concerning 
Furnival's Inn, it was incidentally stated by 



266 LEGAL LORE. 

Michael Doyle, who represented Lincoln's Inn 
before the Royal Commission, that the latter 
society received £576 a year under a lease of the 
former property granted to the late Henry Peto 
for ninety-nine years, £500 being for rent, and 
the remainder in lieu of land tax. The witness 
was, however, unable to give any information as 
to the manner in which, or the date when, the 
property was acquired by Lincoln's Inn. 

The inquiry by the Royal Commission resulted 
in the recommendation of some very important 
changes in the constitution of the little Inns of 
Court and the administration of the several 
properties ; but these, we learn, have been 
modified so much in their adoption as to have 
been of very little value. The societies have 
long outlived the purposes for which they were 
instituted, though their principals and officials 
seem to attach considerable importance to their 
continued existence. It is probable, however, 
that their raison d'etre being gone, they will all 
sooner or later go the way of Lyon's Inn, and 
become things of the past. 



©biter. 

By Georgk Neilson. 

THE claims of the legal profession to culture 
were cleverly belittled by Burns, when he 
w\;uU'. the New Brig of Ayr wax sarcastic over 
the town councillors of the burgh :— 

" Men wha grew wise priggin owre hops an' raisins, 
Or gather'd lib'ral views in Bonds and Seisins." 

Bonds and seisins are certainly not the happiest 
intellectual feeding ground. "I assure you," said 
John Riddell, a great peerage antiquary, " that to 
spend one's time in seeking for a name or a date 
in a bit of crabbed old writing does not improve 
the reasoning powers." Riddell was a keen critic 
of Cosmo Innes, who subsequently had the happi- 
ness of passing the comment upon Riddell's 
observation that " perhaps it is not in reasoning 
that Mr. Riddell excels." Yet the annals of the 
law shew many splendid examples of the union of 
close textual study of manuscript, with an enlarged 
outlook on first principles and with keen critical 
insight. Perhaps Madox was a more permanently 
serviceable scholar than Selden. One can see 



268 LEGAL LORE. 

from Coke's margins, his infinite superiority to 
Bacon in exact knowledge at first hand of older 
English law. But when all is said, we could 
have done much better without Coke and Madox 
than without Bacon or Selden. It is delightful 
to be able to appeal to Chaucer for perhaps the 
most emphatic compliment to law, in respect to its 
capacity for literature, that it has ever received. 
Amongst all the Canterbury pilgrims, there was 
no weightier personage than the Man of Law : — 

" Nowher so bisy a man as he ther nas, 
And yet he semed bisier than he was. 
In terraes hadde he caas and domes alle 
That from the tyme of King William were falle, 
Therto he coude endyte and make a thing 
Ther could no wight pinche at his wryting, 
And every statut coude he pleyn by rote." 

Yet it was this learned and successful counsel, 
alone of the party, who knew the poet's works 
through and through, and had the list of them 
at his finger-ends. Good Master Chaucer for 
this touch we offer hearty thanks ! Was it in 
Herrick's mind when he penned his fine tribute 
to Selden ? 

" I, who have favoured many, come to be 
Graced, now at last, or glorified by thee." 



OBITER. •-'''•'. , 

Wits and poets have had many hard things to 
say in jest and in earnest about the legal 
profession and its work. Herrick bracketed law 
and lawyers with diseases and doctors, in a 
fashion hinting that the relation of cause and 
effect existed between botli pairs ; 

"As many laws and lawyers do express, 
Nought but a kingdom's ill -affected ness. 
Even so those streets and houses do but show 
Store of diseases where physicians flow." 

It was an old story this linking of the prac- 
titioners of law and medicine in one yoke of abuse. 
The reason given for both categories in early 
satire is sufficiently curious. It was because they 
took fees ! Walter Map declared the Cistercian 
creed to be that no man could serve God without 
mammon. Ancient satire equally objected to the 
service of man, either legally or medically, under 
these conditions. "The Romaunt of the Rose" 
has the traditional refrain of other strictures in 
verse, when it declares that 

" Physiciens and advocates, 
Gon right by the same yates, .,„,,.,., gat ^ 

They selle hir science for winning. warning, <«« 

For they nil in no maner gree „„ /„,„/ „,- (l00 d will 

Do right nought for charitee." 



270 LEGAL LORE. 

The same idea, precisely, finds voice in the 
poem attributed to Walter Map, wherein the 
doctor and the lawyer come together under the 
lash, because no hope can be based upon either of 
them unless there be money in the case. " But 
if the marvellous man see coin, the very worst 
disease is quite curable, the very falsest cause 
just, praiseworthy, pious, true, and pleasing to 
God." Perhaps these ancient sarcasms were 
keener on the leech than the lawyer. " The 
Romaunt of the Rose " goes so far as to say that 
if the physicians had their way of it, 

" Everiche man shulde be seke, 
And though they dye, they set not a leke 
After : whan they the gold have take 
Ful litel care for hem they make. 
They wolde that fourty were seke at onis ! 
Ye, two hundred in flesh and bonis ! 
And yit two thousand as I gesse 
For to encresen her richesse." 

No doubt the men of medicine would have been 
much more vulnerable on another line, for it 
was no satirist but a learned medical professor, 
Arnauld de Villeneuve, who, in the beginning of 
the fourteenth century, advised his students as 
follows: — "The seventh precaution," said he, "is 
of a general application. Suppose that you 



OBITER. 27 1 

cannot understand the case of your patient, say 
to him with assurance that he hath an obstruction 
of the liver." No legal professor surely was ever 
guilty of the indiscretion of saying such a thing 
as this ! 

The ineradicable public prejudice against legal 
charges as flagrantly exorbitant is only a modified 
form of an older idea exemplified above that 
lawyers should have no fees at all. And as to 
this day the plain man has never fully reconciled 
himself to the doctrine that the lawyer is only 
an agent, and not called upon to sit in the first 
instance in judgment on his client, so in the 
past the professional defence of a criminal 
appeared a very venal transaction. 

" Thow I have a man i-slawe, 
And forfetyd the kynges la we 
I sal fyndyn a man of lawe 
Wyl takyn myn peny and let me goo." 

How reprehensible a thing to take fees was 
lono- reckoned admits of curious illustration. 
" Before the end of the thirteenth century," says 
that never-failing authority, Pollock and Mait- 
lnnd's "History of English Law.'" there already 
exists a legal profession, a class of men who make 



272 LEGAL LORE. 

money by representing litigants before the courts 
and by giving legal advice. The evolution of 
this class has been slow, for it has been with- 
stood by certain ancient principles." Amongst 
these retarding influences lay the half-religious 
scruple about the propriety of payment — - 
men as usual swallowing the camel first and 
straining at the o-nat afterwards. Of course the 
subject had to be illuminated by monkish tales 
and death-bed repentances. There was, according 
to the Carlisle friar who penned the "The Chronicle 
of Lanercost," — writing under the year 1288, — 
a young clerk in the diocese of Glasgow, whose 
mind " was given rather to the court of the rich 
than to the cure of souls. He was called Adam 
Urri, and was laically learned in the laic laws, 
disregard in a- the commands of God against the 
Praecorialia [so in the printed text, but, query, 
Praetorialia ?] of Ulpian. He used the statutes 
of the Emperor in litigating causes, for payment 
of money. But when he had grown old and 
famous in this his wickedness, and was striving 
by his astuteness to entangle the affairs of a poor 
little widow, the divine mercy laid hold on him, 
assailing his body with sudden infirmity, and 
bringing his mind to plead (enarrarei) more for 



OWTKK. 273 

another life." Condemning utterly the lawyer's 
court, he turned over a new leaf, predicted the 
day of his own death, and died punctually 
conform to the phophecy, leaving- an example 
unctuously used by the friar to teach future 
generations "how wide was the gulf betwixt the 
service of God and the vanity of this world." 
We shall not he far wrong in regarding, as of 
more historic interest, the indication of the 
immorality of fees, and the important reference to 
Ulpian as an authority in the forum causidicorum 
of thirteenth century Scotland. 

Amongst the amiable conceptions of the middle 
a^e was the notion that the Evil One often 
manifested a particular zeal against sin. He was 
regarded with a different eye from that with 
which we regard him, and he rewarded faith with 
actual appearances such as only spiritualists can 
now-a-days command. Some of them were not 
very engaging, however praiseworthy may have 
been their object and occasion. Simeon of Dur- 
ham, an eminently respectable contemporary 
author, wrote of the death of King William Rufus 
in the year 1100 that the popular voice considered 

the wandering flight of Tyrell's arrow a token of 

18 



274 LEGAL LORE. 

the " virtue and vengeance of God." And he 
added that about that time the Devil had frequent- 
ly shewn himself in the woods "and no wonder, 
because in those days law and justice were all but 
silent." The logic of this because, not apparent 
on the surface, becomes less obscure when it is 
remembered that in the mediaeval devil the 
character of Arch-Enemy is so much subordinated 
to that of Arch- Avenger. 

The direct relation of not only the Saints 
but of the Deity itself to human affairs was 
a conception so clear to the mediaeval mind 
that it saw nothing irreverent in a title 
deed being taken in the Supreme name, or 
in marshalling " Deus Omnipotent " at the head 
of the list of witnesses to a charter. This 
anthropomorphic practice gave occasion to one of 
the sharpest of Walter Map's jokes against the 
Cistercians. Three abbots of that order petitioning 
on behalf of one of their number and his abbey 
for the restoration of certain lands by King- 
Henry II. as having been injuriously taken away 
from the claimant's abbey, represented to the 
Kin£ in his court that for God's sake he ouofht to 
cause the lands to be restored and they assured 



olUTKK. 275 

him ami gave him God himself as their guarantor 
(fidejussor&m) that if he did, God would greatly 
increase his honour upon earth. King Henry 
found it difficult to resist the appeal thus made 
to him bul called the Archdeacon Walter Map to 
advise. This he did well-knowing that this 
counsellor did not love the Cistercians, and that 
he might thus find a creditable way out of a tight 
corner. The Archdeacon was equal to the occasion. 
"My lord," said he to the King, "they offer you 
a guarantor; you should hear their guarantor 
speak for himself." "By the eyes of God," 
replied Henry, " it is just and conform to reason 
that guarantors themselves should be heard upon 
the matter of their guarantee." Then rising with 
a gentle smile (not a grin, expressly says Giraldus 
Cambrensis) the shrewd monarch retired leaving 
the disappointed abbots covered with confusion. 

Of the many ties between literature and law, 
one, not by any means the least interesting on 
the list, is the quantity of legal citations, phrases, 
metaphors and analogies which got swept into 
the wide nets of the poet-. Amongst such scraps 
there are few so successful and still fewer so 
pathetic as one in which a metrical historian, 



276 



LEGAL LORE. 



drawing near the close, both of his days and his 
chronicle, figured himself as summoned on short 
inducim at the instance of Old Age to appear at 
a court to answer serious charges, where no help 
was for him save through grace and the Virgin 
as his advocate. 



Elde rue maistreis wyth hir brevis, 

like day rue sare aggrevis, 

Scho has me maid monitioune 

To se for a conclusioune 

The quhilk behovis to be of det ; 

Quhat term of tyme of that be set 

I can wyt it be na way, 

Bot weill I wate on schort delay 

At a court I mon appeire 

Fell accusationis thare til here 

Quhare na help thare is bot grace. 

The maikless Madyn mon purchace 

That help ; and to sauff my state 

I haiff maid hir my advocate. 



elde, age 

brevis, writ 

ilke, each 

quhilk, which 

of (let, of right 

wyt, know 



bot, witlwvX 
maikless, matchless 

purchace, procure 
sauff, saw 



Androw of Wyntoun's verse it must be owned 
was verse on the plane of a notary public, and oft 
the common form of legal writ supplied sorrily 
enough the deficiencies of his imagination. But 
here for once the simple dignity of the thought 
bore him up and carried him through. 



3nbey. 



Aberdeen, gipsies at, I7"> 
Abjuring I be r< aim, I "> 

Atijur.it ion, 69 

Abolishing right of Sanctuary, 16 
Adultory, penalty of, 1 1 
Africa, ordeal in, 24 25 
Amphitheal re, -ports of, 1 12 
An eye for an ej e, L37 
Ancient tenures, 95 108 
Andrews, William, Cock Fight- 

. . L96 200 
Anglo-Saxon < 'hurch, 14 
Aram, Eugene, 212 
Ashford, Mary, In- 11 
Asyla in < Ireece, 14 
Axon, W. E. A., Sanctuaries, 

13-22 ; Laws relating to the 

Gipsies, 165-178 

Babylonia, law of, 3-4 

Balance, ordeal of, 27 

Barbarous Punisements, 132-148 

Barnard's Inn, 263 

Beetles, trial of, 1 57 

Begbie, William, murder of, 210 

Beverley, Sanctuary at, 19-20 

Bible Law, 1-12 

Bible, ordeal of the, 37 

Bible, weighing against, 27 

Bier, ordeal of, 36 

Bird, Robert, Cockieleerie Law, 
200-204 

Biretta, .">:> 

Black Book of Hereford, 101 

Black Parliament, 225 

Blood, laws written in, 135 ; 
stains, -2±> 

BoiliiiLC to death, 135 

Book of Common Prayer, abol- 
ished, 194 

Borough English, 104-106 

Breaking straws, 18; rods, 49 

Buccleuch, Barons of, 107 

Bull relating to English Sane 
tuaries, 15 



Bull, trial of, 150 
Burned alive, 134 
Burgi 38, s., Bible Law, 1-12 

Canning, Elizabeth, 172-173 

( 'anon Law , 187, 225 

Castles, a cenl re of power. ~ \ 

< '.-it i le stealing, 7 I 

Channel Islands, Laws of the, 

242-243, 248 257 
Charges, prejudice against, -71 
Charles I., Trial of, 182 
Chaucer's compliment to the law, 

268 
Cheltenham, Manor of, 94 
( ihemical tost, 220 
Christians, early punishment of, 

137 
Church and ordeals, 29 
Clarke, Sidney W. , Barbarous 

Punishments, 132-14 I 
Clement's Inn, •Jlill 
Cock-Fighting in .Scotland, 196- 

a 1 1 ' 

Cockieleerie Law, 200-204 

Cock, tried for laying an egg, 154 

Commonwealth Law and Lawyers, 

178-196 
Continental Feudalism, 77-82 
Conveyancing Symbols, 50-51 
Copyhold, 49, 83 
Corsnedd, ordeal of, .'!■"> 
Commandments, breaking, '■> 
Cross, ordeal of the 33 
Crown, 56 

Coventry Acts. 142-143 
Court Baron, SI 
( lustomarj I lourl , S4 
Crucifixion, 136 

Dead bodies brought to place of 
judgment , 232 
limitation of, 9 
Declining knighthood, 03-64 



278 



INDEX. 



lV-tilement, 8 

Delivery of turf or twig, 50 

Deposition of kings, 56 

Devices of the Sixteenth Century 

Debtors, 161-164 
Divine right of kings, 193 
Dog carrying, 140 
Dogs in recognition of tenure, 

101 
Dream evidence, 214-217 
Dudley lands, 64 
Durham Sanctuary, 17, ID 

Escheats, 226 

Emma, Queen, tried by ordeal, 

30 
Englishry, law of, 70 
Executing gipsies, 167, 170 

Failure to extripate gipsies from 
England, 170 

Fatal Links, 205-223 

Father, powers of, 9 

Ferocity of forest laws, 119, 

Feudal lord, powers of the, 64 

Feudal system, 58-62 

Fining jurymen, 124 

Fire ordeal, 28 

Flagellation, 61 

Flags, rendering for tenure, 101 

Forests, great, 115-116 

Forgery, punishments, 142 

Fortune telling, 169 

France, penal laws of, 140-141 ; 
Trials of animals in, 149-154 

Frankalmoign, 103 

Free alms, 103-104 

Fridstools, 17, 20 

Frost, Thomas, Trial by jury in 
Old Times, 122-131 ; Trials 
of animals, 149-160; Little 
Inns of Court, 258-266 

Furnival's Inn, 265 

Gavelkind 106-107 

Ghosts, 217-220 

Gibbet, gipsy rescued from, 176 

Gipsies, laws relating to the, 165- 

178 
Glove, 92 
( iodiva story, 74 
Grand Serjeantry, 100 
Great Civil War, 179 
Greenacre case, 209, 



Hampden, John, 182 

Hanged, drawn, and quartered, 

133-134 
Hasp and staple symbol, 52-53 
Hat as a symbol, 53-54 
Hawaii, ordeals in, 25 
Henry VIII. , laws against gipsies, 

169 
Hereford Fair, 101 
Heresy. 228 
Heriots, 91-92 
Herrick on lawyers, 269 
High treason, trial for, 122-124 ; 

punishments for, 132-135 
Hindoos, ordeals of the, 26-27 
Holzmann, Maria Ann, murder 

of, 206-209 
Homage, 53 
Homicide, 11 
Horse, trial of, 151 
Hot iron, ordeal of, 27, 30, 31, 32 
Howlett, England, the Manor 

and Manor Law, 83-94 ; 

Ancient Tenures, 95-108 
Hugh of Avalon, 120 

Ignorance, sin of, 7 

Iniquities, legal, 145 

Irish Island Laws, 238-239J 

Isle of Man, Laws of the, 243-247 

Island Laws, 237-257 

Jews, extortions of, 73 
Jocular tenure, 102 

King's power limited, 12 
Knight, service of, 96 

Lanercost, the chronicle of, 272 
Law under the Feudal System, 

58-82 
Law and Medicine abused, 269- 

270 
Laws of the Forest, 109-121 
Laws relating to the Gipsies, 165- 

178 
Left-handed murder, 214 
Letters of IV. Forms, 1 63 
Lesemajesty, crimes of, 229-231 
Lincoln's Inn, 266 
Lipski, 213 

Literature and Law, 275 
Little Inns of Court, 258-266 
Lords, power of, 58 



INDEX. 



279 



Lord Chid Justice Popbam, 

stolen bj gipsies, 17" 
Loss oi right band, 138 
Lyon's Inn. 259 

Macdonald, James < '., !>■ ricee 

of i be Si tteenl b < !enl urj 

Debtors, 161 164 
Magna < 'harta, 63, 98 
Manchester, Sanctuary at, 15, 

16, 17 
Manor and Manor Law, 83 94 
Manor, origin of, s ^ 
Marriage in feudal times, 59 
Marriage laws, altering, 19.~> 
Marrying to atone for violence, 

ill 
Martin, Maria, 214 
Middle Ages, ordeals of, 29 
Military sen ice, 59 
Military punishments, 136 
Mone\ raised by marriage, 72 
Mortal ( lombal , 37- 1 1 
Mosaic law . .': 
Mutilation, a favourite mode of 

punishment, 141-144 
Muswell Hill murder, 2 18 

Neilson. George, on Symbol-, 48- 
r.7 : Post Mortem Trials, 224- 
236 ; Obiter, 2(>7-27(i 

New Inn, 2.")!) 

New wax of paying old debts, 
163 ' 

Ximrod, 111 

Norman foresl laws, 117 

Oath, refusal to bear witness of, 

s; of fealty, 60 
On Symbols. 43-57 
Oppression of gipsies under Queen 

Elizabeth, 171 
Ordeals, 24-42 

Palace regulal ion-, 138-14U 
Parricide, punishment for, 137 
Paul's ( Iross, preaching at, 194 
Peacock, Edward, Laws of the 
Forest, 109 121 ; Common- 
wealth Law and Lawyers, 
179-196 
Peine forte el dure, 145-1 is 
Penal Code, English, 1 15 
Penn and Mead, trial of, 125 



Pei -■ cul am ot gipsi< -, 171 
Plantal ion.-, gipsiee Bent to, 1 7 s 
Plays acted by gipsies, 1 76 
Pigs, trial of, 150, 151, 152, 153, 

157 
Pillory, I 12, l n 
Poison, L35, 138 
l'oi-on, ordeal, 28 
Poisoning, punishmenl for, 135 
Poor laws, '.• 

Post Mortem Trials, 224 236 
Prejudice against gipsies, 172 
Protecting the church in war 

time, 102 103 
Proverb, oldest, 1 II 
Punishments under .Saxon-, lil 

Quakers, trial of, 125-131 

Rann, Ernest H., trials in super- 
stitious ages, 22 12 ; Fatal 
Links, 205-223 

Reasoning power, 207 

Rebel Heads on City gates, 134 

Refuge, cities of, 14 

Regicides, 184 

Robbing travellers in feudal 
t ime.-, 73-74 

Robert de Belesone, cruel acts of, 
65 

Robert the Bruce, Conspiracy, 
225 

Rod in .Scotland, 4il 

Roman Empire in its glory, 114 

Rose Tenures, 102 

Ruskin, duo., on Cceur de Lion, 
72 

Sacrifice, laws relating to, ~>-7 

Sacrilege, 8 

Sanctuaries, 13-22 

Scilly Island.-, laws of the, 239 

Scoggan, Queen '8 jester, 168-104 

Scotch Islands, laws of the, 239- 

242 
Scotland, sanctuaries of, 21-22 
Scott, John, of Edinburgh, 161- 

163 
Scutage, 98 
Self-slaughter. 229 
Ship-money tax, 181 
Shaving the bead for theft, 69 
Siamese, ordeals of the, 26 
Silver spear, 55 



280 



INDEX. 



Slavery, discharge from, 45 
Slaves, ill treatment of, 8, 10; 

under the Saxons, GO 
Slaying gipsies, 17-V176 
Sods ottered at the altar, 48 
Spindle on the altar, 51 
Staff and baton, 50 
Staples Inn, 262 
star Chamber, 124-125 
Strangulation, punishment by, 
Straws, breaking, 48 
Stocks, 67 
Switzerland, trials of animals in, 

154 
Symond's Inn, 265 

Thornton, Abraham, 40-41 

Towns amerced, 70 

Traitors, exempted from the 

Sanctuary, 15 
Treason, trials for, 233 
Trial by Jury in old times, 122- 

131 
Trials of Animals, 149-160 
Trials in superstitious ages, 22-42 
Tynwald Day, 247 



Usury, law of, 9 

Villeinage, 86 

Violating the sanctuary, 14, 21 

Wager of Battel, 37, 41 
Walters, Cuming, Law under the 

Feudal system, 58-82 ; Island 

Laws, 237-257 
Wand, 49 
Welcoming gipsies to England, 

168 
Westminster, sanctuary of, 20 
Whipping 61 ; Post 67 
William I., Forest Laws of, 118 ; 

Burial of, 225 
William the Red, Forest laws of, 

119 
Witchcraft, 144-45 
Wollen Industry, protection of, 

144 
Women, free bench of, 93 
Working of the sanctuary system, 

16, 17 



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